Hayes v. Slidell Liquor Co.

Anderson, J., delivered the opinion of the court, The appellee, the Slidell Liquor Company, sued appellants, George and C. Ii. Hayes, for a balance claimed to-be due by appellants to appellee on open account. There was a verdict and judgment for appellee, from which appellants prosecute this appeal. Appellants admitted the correctness of the amount sued on, but interposed thereto the following plea of recoupment: “Come the defendants and for plea in their behalf say that they do not deem themselves indebted to the Slidell Liquor Company, or under any obligation to pay any sum whatever; that in truth and in fact the plaintiffs in this cause are justly indebted to the defendants in the sum of $36.00 (thirty-six dollars); that whereas, heretofore, to wit, about two (2) years ago the plaintiffs, through one of their agents, approached defendants, and insisted upon defendants taking a shipment of phosphate, that defendants did not desire at that time and refused to accept, but by persistent efforts on the part of the plaintiff, through their agent, that the goods were harmless and non-intoxicating, the defendants agreed to accept sixty dollars worth of said phosphate, solely upon the representation, statements, and promises, and the guaranty of the plaintiffs that the same were non-alcoholic, all of which representations, statements and promises were knowingly and willfully made by the agent of said plaintiffs; and that afterwards, to wit, about-months from the date of the purchase, one of the officers of the United States federal government entered the place of defendant and analyzed said phosphate, and it proved then and there alcoholic and in violation of the United States federal law, the state laws, and the laws of the municipality; and that, as a result of said investí [590] gation by said federal officer, defendants herein were forced by the laws of the federal government, to prevent rigid enforcement of the law and imprisonment, to pay out the sum of ninety-six dollars in good and lawful money of the United States, all of which was caused by the fraudulent representations and misrepresentations and statements made by the plaintiffs ’ agent herein, and by reason of said statements, which were knowingly and fraudulently made, the defendants herein have paid out thirty-six dollars more than they are due plaintiffs. Wherefore they counterclaim and recoup and set off said indebtedness.” Appellee joined issue on this plea, and after all the testimony was in for both appellants and appellee the court instructed the jury to return a verdict in favor of appellee, which was done, and judgment entered accordingly. The action of the court in granting this instruction constitutes the only assignment of error in this court. There was no motion for a new trial by appellants. All the testimony was embodied in a bill of exceptions, which is in the record, and which shows that, at the conclusion of the testimony, appellee moved the court to exclude all of appellants’ testimony, and for a peremptory instruction to the jury to return a verdict in appellee’s favor, which motion was sustained, to which action of the court appellants excepted. It is contended on behalf of appellee that the action of the court below, in granting the instruction to the jury to return a verdict in its favor, is not reviewable by this court, because of the failure of appellants to enter a motion for a new trial, assigning therein such action of the court as a ground of the motion. The general rule is that alleged errors of the trial court, occurring during the trial, will not be reviewed on appeal, unless such errors have been called to the attention of the trial court in a motion for a new trial, in which they are assigned as grounds of the motion, and an opportunity [591] thus given, to correct them, followed by a judgment overruling such motion. Armstrong v. Whitehead, 81 Miss. 35, 32 South. 917. This rule, however, is not universal. It was held in Nicholson v. Karpe, 58 Miss. 34, that where a jury is waived, and the questions of law and fact submitted to the judge for adjudication, “a general bill of exceptions, embodying all the testimony, may be taken to his judgment, which will be considered by this court, although no motion for a new trial is made or acted upon in the court. ” It is said in 14 Ency. PL & Pr., p. 850: “It has been held that a ruling on a demurrer to the evidence is' a decision occurring at the trial, and therefore a motion for a new trial is necessary to secure a review. The weight of authority, however, is that stich decision is a judgment which may be reviewed without a motion for a new trial, except as to error in the assessment of damages.” We approve the authorities holding to the latter view as declaring a more reasonable rule than those holding to the contrary. The giving of a peremptory instruction is analogous to a demurrer to the evidence. Such an instruction raises the question whether the evidence as a whole, and every reasonable inference therefrom, taken as true, tends to establish the cause, or defense, as the case may be. In determining whether such an instruction shall be given, the trial judge adjudicates both questions of law and fact, which are effectually brought to his attention as if they were embodied in a motion for a new trial. In such a case, the reason for requiring a motion for a new trial fails. There is no more reason for such a motion, in order to have the question reviewed on appeal, than in a case where a jury is waived and the judge adjudicates the questions of law and fact. “Recoupment is distinguished from set-off in these ■particulars: First, it arises out of matters connected with the transaction or contract on which the plaintiff’s •cause of action is founded; second, it matters not whether [592] it be liquidated or unliquidated; third, it is not dependent on any statutory regulation, but is controlled by the principles of the common law.” Raymond v. State, 54 Miss. 562, 28 Am. Rep. 382; Myers v. Estell, 47 Miss. 4. The evidence offered on behalf of appellants tended to establish the fact set out in their plea of recoupment, and was sufficient, therefore, to go to the jury on the issue raised by the plea. The court below erred in directing the jury peremptorily to return a verdict of appellee. Reversed and remanded.