Craig v. Pattison

Stockdawe, J., delivered the opinion of the court. Appellant sued in a magistrate’s court to recover his share of the crop made by him on appellee’s plantation during the year 1896, valued by him at $100. Appellee filed, as offset, an account for supplies furnished appellant during the year 1896, amounting to $67.70. Judgment being rendered for appellant, appellee appealed to the circuit' court, and having-given bond for the forthcoming of four bales of cotton and two tons of cotton seed claimed by appellant, she retained the same in her possession. It was conceded that appellant made the four bales of cotton and two tons of seed, and admitted by the parties on the trial in the circuit court that Mrs. A. H. Patti-son had furnished the supplies charged in the account filed as offset to plaintiff’s demand, and that she had not paid any privilege tax nor taken out any privilege license to do business or keep a store during the year 1896, or any part thereof. Plain [884] tiff objected to any testimony being introduced to support the account (except a small portion thereof charging articles raised at home by defendant), contending that defendant could not recover for the articles charged therein because they were sold and furnished from her store when she had no privilege license on said store or to keep the same. Plaintiff testified that he made four bales of cotton, weighing five hundred pounds each, worth five cents per pound, and two tons of cotton seed worth six dollars per ton, and he was entitled to half thereof, and that the corn had been divided. The testimony shows that defendant (appellee) kept for sale, and sold at a profit at credit prices, groceries, dry goods and clothing, in considerable quantities and variety, at her residence on her plantation, but sold only to her tenants, as other planters did; that she purchased quantities of goods at Memphis, Term., and other places, and sold at retail for profit at credit prices. Appellee’s counsel contends (1) that these goods were kept partly in a room in the dwelling and partly in a smokehouse, and was not a store; (2) that appellee furnished only her own tenants; (3) that no proof of any value of said goods was made. The word store is used to designate a place where goods are sold, and it is not necessary that they be kept in a house to constitute a store. Folkes v. State, 63 Miss., 81. The fact that appellee sold only to her own tenants does not argue that her business was not a store. She only sold to a selected class of customers, as she had a right to do. Alcorn v. State, 71 Miss., 464. “A store” is employed in § 3390, code of 1892, to designate a place where goods are kept for sale by wholesale or retail. ‘ ‘ There is no reference to any particular class of goods named. The store may be for the sale of dry goods, clothing, groceries, drugs, or any other article of merchandise kept for sale.” Pitts v. Vicksburg, 72 Miss., 181. And the statute of 1896 adopts the same language on page 46, as § 3390 of the code. It seems clear that appellee’s business constituted “a store. ” It is in testimony that the articles con [885] stituting appellee’s account against appellant were furnished him from appellee’s store, and were valued at $67.70, and the store out of which they came must have been of some value. And if said store was worth no more than $300, the owner must pay $2.50 privilege tax. The contention of appellee’s counsel that she does not stand in the attitude of one seeking the enforcement of a contract, but in the attitude of one who has collected a debt, voluntarily paid, and the debtor seeking to recover it back, is not supported by the record in this case. Defendant (appellee) did not answer plaintiff’s demand, that the matter had been settled and the account paid, but propounded her accounts as a set-off to plaintiff’s demand, and asked judgment upon it, and obtained judgment for the amount of the account, with six per centum interest thereon, and, singularly enough, got a judgment in her favor that she retain the cotton and cotton seed bonded by her, and which it was conceded plaintiff had made. Appellee’s effort to distinguish this case from the Alcorn case, because there it was shown that there was a large number of tenants and here it was not so shown, is without force; seeing that appellant offered to prove the same state of facts in this case, his testimony was rejected by the court erroneously, as we think, upon objection by appellee’s counsel. It is evident from the record in this case that defendant below, appellee here, carried on her business in disregard of the statute in reference to privilege licenses, and she cannot base any claim upon her contract for the sale of goods to appellant, except as to such articles as she had produced on her own plan-' tation. Laws 1896, sec. 2, p. 50. In the attitude of this case, as shown by the record, a new trial ought to have been granted. The assignments of error, are well taken, and are sustained. The judgment of the court below is reversed, a oiew trial awarded, and the cause remanded.