L. Marks' Sons v. West Tennessee Grain Co.

Ethridge, J., delivered thé opinion of the court. L. Marks’ Sons, a firm composed of S. M. Marks, H. IT. Marks, and .M. L. Marks, filed a bill in the chancery court, originally against the West Tennessee Grain Com [471] pany, a corporation of Tennessee doing business at Obion, Tenn., praying an attachment in chancery of certain funds alleged to be held in tlfe Exchange Bank of Friars Point, Miss., and the Bank of Clarksdale, of Clarksdale, Miss., being the proceeds of a shipment of grain by the defendant, West Tennessee G-rain Company, claiming that the West Tennessee Grain Company was indebted to complainants on a shipment of grain warranted to be sound and of merchantable quality, theretofore shipped from the defendant West Tennessee Grain Company to L. Marks’ Sons, and' paid for before the damaged and unsound condition of the corn was discovered. The Exchange Bank of Friars Point answered, admitting funds in its possession of four hundred and sixty-four dollars and twenty cents, but suggested that the funds belonged to the Commercial Bank of Obion, Tenn. The Commercial Bank of Obion filed a bill of intervention, claiming that it had bought the draft drawn on McCaughn & Corley of Farrell, Miss., from the West Tennessee Grain Company, and that the funds belonged to the Commercial Bank of Obion. The complainants filed an amended bill, making the Commercial Bank of Obion a party defendant as a co-warrantor of the grain sold to complainants which shipment of grain and bill of lading attached had also been indorsed to the Commercial Bank of Obion by the West Tennessee Grain Company prior to the shipment and delivery of the corn. It was alleged that the grain so shipped was unsound, rotten, and damaged, and by reason of the unsoundness' of said grain that complainants were damaged in the sum of three hundred and seventy-one dollars and sixty-nine cents, and judgment was prayed against the Commercial Bank of Obion, as well as the West Tennessee Grain Company. The West Tennessee Grain Company, though duly published for as a nonresident defendant, failed to appear and plead, and a decree pro confesso was taken against it. The Commercial Bank of Obion [472] filed its answer, denying tlae allegations of the hill so far as it was concerned, and contended that it was not liable, for the reason that the money was collected on the original shipment Company and a settlement between the Grain Company and the bank had been made prior to the institution of this suit. It denied the allegations as to the damaged condition of the corn and as to the shortage claimed. Complainants introduced proof to show that the corn was damaged from fifty-five per cent, to sixty-six per cent., and that there' was a shortage on the amount of grain shipped. One of the parties who weighed the corn for the Grain Company was dead, and the other was not produced on the trial, and the trial court refused to admit the' weights and tickets, showing the weights held by the complainants, and made by the absent witness for the complainants. At the conclusion of the evidence the court found for the defendant the Commercial Bank of Obion, and ordered the funds that had been paid into the court by the Exchange Bank of Friars Point paid over to the Commercial Bank of Obion, and held as to the West.Tennessee Grain Company that it had acquired no jurisdiction, and set aside the decree pro confesso, and dismissed the bill of complainants, but granted an appeal with supersedeas to this court. We think it was clearly proven that the original shipment of grain to L. Marks’ Sons was unsound and nonmerchantable corn, and that as that draft, with bill 'of lading attached, as well as the draft attached to the shipment herein attached, was assigned by the West Tennessee Grain Company to the Commercial Bank of Obion, with bill of lading attached, both drafts being-payable in Mississippi, and the grain delivered in Mississippi at the time of the payments, brings this suit within the principles of the case of Mobile Auto Co. v. Sturges & Co., 107 Miss. 848, 66 So. 205. [473] In the case of Searles v. Smith Grain Co., 80 Miss. 688, 32 So. 287, and the case of Bank v. Searles, 81 Miss. 172, 32 So. 314, this court held that a hank sending a draft for grain, with bill of lading attached, payable in Mississippi, was a co-warrantor with the shipper or seller of the grain, warranting the soundness and merchantable condition, and that this obligation constituted a debt to the extent of the loss resulting from the unsound and nonmerchantable condition of the grain, for which the bank was liable to the payee of the draft — that is, the consignee of the grain — and such debt would sustain an attachment in chancery in the courts of this state. We think the present case cannot be distinguished in principle from the eases cited, and that the learned court below erred in not entering a decree for the loss sustained, with interest thereon from the date of the delivery of the grain. The case is accordingly reversed and remanded for assessment of damages alone. Judgment as to liability is rendered here. Reversed and remanded for assessment of damages. Reversed and remanded.