Stone-Lowe Cotton Co. v. Weil Bros.

Ethridge, J., delivered the opinion of the court. Weil Bros, brought suit against the appellant in the circuit court for one thousand, seven hundred and twenty69 tiro dollars and nine cents on a contract for the purchase of some cotton, alleging that on or about the 18th day of October, 1919, plaintiff bought from the defendants two hundred and twenty-four bales of cotton at thirty-five and fifty-five one-hundredths cents per pound, basis strict .middling one-fourth cent up for good middling, one-fourth cent down for middling, two cents off for strict middling tinges, four cents off for middling tinges; said lot of cotton to contain about twenty bales of tinges; that two hundred and twenty-four bales of cotton were bought by the plaintiff at Jackson, Tenn.; that the cotton was to be taken up at Somerville, Tenn., to be settled for subject to readjustment according to weights and grades to be finally adjusted by the Jackson, Tenn., compress weights and according to its true grades to be afterwards ascertained; that the plaintiff paid the defendant for said'cotton and in due course proceeded to have the same properly graded and weighed, and that this resulted in the loss of five hundred and ninety-nine dollars and fifty-three cents on grade and one thousand, two hundred and thirty-six dollars and ninety-three cents on weights, making a total of one thousand, eight hundred and thirty-six dollars and fifty-six cents, to which there is a credit of five point on one hundred and twenty thousand, and fifty-three pounds amounting - to sixty dollars and three cents, and a credit in the grade of certain grades amounting to fifty-four dollars and forty-four cents, making a total credit of one hundred and fourteen dollars and forty-seven cents, which, deducted from the one thousand, eight hundred and thirty-six' dollars and fifty-six cents, leaves the amount sued for one thousand, seven hundred and twenty-two dollars and nine cents, for which they demand judgment. The defendant pleaded the general issue and gave notice thereunder that upon the trial the defendant w'ould show that, incident to the sale of the cotton, it was agreed by the agent of the plaintiff and defendant, and without which no sale would have been made, the cotton in question amounting to two hundred and twenty-seven bales which [70] the defendant had purchased from Lipsky Bros, at Somer-ville, Tenn. The above-mentioned cotton which was to have averaged middling and the weights were to be taken from the receipts delivered to Lipsky Bros, at Somerville, Tenn. In other words, that the defendant was to pay Lipsky Bros, for the number and aggregate weight of said cotton according to their receipts and the class of said cotton was to average middling. That plaintiff’s agent was present in the offices of the defendant at the time of the purchase and fully understood the terms upon which the purchase was consummated, and that the agent of the plaintiff was fully informed as to the terms and stipulations and agreed to go to Somerville, Tenn., to inspect, classify, and grade the cotton, and that, if it did not average middling and did not weight out according to the sale made to the defendant, he would not accept and pay for the same. That notwithstanding said agreement between the plaintiff and defendant, the agent of the plaintiff did proceed to Somerville, Tenn., to take up said cotton and in an unbusinesslike way accepted the weights furnished' him by Lipsky Bros., paying no attention to the damaged bales of cotton and paid Lipsky Bros, for the gross amount and subsequently reclassified the grades thereof and made reclamation on the defendant after the damaged cotton had been picked and after Lipsky Bros, had been paid. There was a sharp dispute between the plaintiff and the defendant as to the terms of the contract; the plaintiff’s witnesses proving the contract in accordance with their theory, and the defendant by its witnesses in accordance with its pleadings. There is no dispute in the evidence as to the weights at the Jackson, Tenn., compress, and there is no dispute in the evidence as to the grades of the cotton proven by the plaintiff. The case proceeded to trial from its disputed issue of fact as to what the contract was and upon the theory on the part of the defendant that the plaintiff could not recover because there was no contract in writing and the value of the cotton sold was much more than fifty-dollars. [71] There was a trial before a jury, and the jury found for the plaintiff in general terms without naming the amount of their verdict; the verdict of the jury reading as follows: “We the jury of ten to two render the verdict in favor of the plaintiff.” After this verdict was returned, the court without consulting the jury amended the verdict so as to read as follows: “We, the jury, find the issue for the plaintiff and assess its damages at the sum of one thousand, seven hundred and two dollars and nine cents.” And upon this verdict entered a judgment for said amount with sis per cent, interest thereon from February 8, 1920. After the entry of this judgment, the defendant filed a motion for a new trial containing numerous grounds; among others, that the above verdict was no verdict at all upon which a judgment could be based, and that the court had no right to correct the verdict as was done as above stated. Also, that the court erred in instructing the jury, in instruction No. 1, that if said cotton failed to come up to the contract, “either in grades or weights, or both,” to find for the plaintiff in the amount sued for. On the hearing of this motion for a new trial, the circuit judge made the statement that the defendant would have been entitle to a peremptory instruction as to the five hundred and ninety-nine dollars and fifty-three cents and that he would then enter a remit-titur if he had the power to bind both parties by so doing, but that he could not bind but one party on the theory that there was no proof as to this item. On an examination, however, of the list of bales, marks, weights, and grades introduced in evidence and testified to by the plaintiffs agent as being correct, we find there was proof as to the grades of the cotton and the plaintiff’s proof with reference thereto is not disputed. Neither is there any dispute as to the loss in weights. The verdict therefore for the plaintiff in general terms was necessarily on this record a finding for the plaintiff on the contract as testified to by the plaintiff, and, as there was no dispute in the evidence as to the loss in weights and the difference in grades according to the. plaintiff’s contract, there was no error in cor72 vetting the verdict and entering judgment thereon. It is insisted by the appellant that the plaintiff’s case required the establishing of both the grade basis and the compressed weight basis. We think the issue submitted as to what the contract was and the finding for the plaintiff on such issue carried both propositions. The defendant’s theory of the contract was that the plaintiff was to take over its contract with Lipsky Bros, giving it a profit of five points. This contract was rejected by the jury. So there was no error with reference to this matter. It is next complained that instruction No. 1 for the plaintiff is error. This instruction reads as follows: “The court instructs the jury for plaintiff that if you believe from the preponderance of the evidence in this case that Weil Bros, bought the cotton involved in this suit from the defendants on the contract prices, the contract grades, and the contract weights as set out in plaintiff’s declaration, and that said cotton failed to come up to said contract either in grades or weights, or both, then you will find for the plaintiffs and assess their damages the amount sited for.” The error is alleged to consist of that part of the instruction which says that if ’“said cotton .failed to come up to the said contract either in grades or weights, or both, then you Avill find for the plaintiffs and assess their damages the amount sued for.” The instruction must be taken as a whole, and the first part of it required the jury to find from the preponderance of the evidence that the cotton was bought on the contract prices, the contract grades, and the contract weights as set out in plaintiff’s declaration. Inasmuch as there ivas no dispute in the evidence as to the weights and grades, the instruction would not be reversible error, though it was technically incorrect in its concluding parts to say if the cotton failed to come up to the contract either in grades or weights, or both, there was nothing to do save find a verdict for the amount sued for by the plaintiff. When the jury found under this instruction the verdict as testified to by the plaintiff and the plain [73] tiff put in evidence, which ay as not disputed, as to the loss in grades and weights, there was nothing to do save find a verdict for the amount sued for by the plaintiff. In other-words, the vdiole controversy turned upon vvliich party established the contract. Besides vvhat we have said above, the whole trial proceeded upon the theory up to the verdict and judgment as to which was the contract; the plaintiff’s evidence tending to establish one contract, and the defendant’s evidence a different contract, Avith the further contention by the defendant that the statute of frauds applied and the plaintiff could not recover because of that. The appellant raised the present contentions upon the motion for a neAV trial. Instruction No. 2 for the plaintiff is also complained of, but Ave fail to see Avherein it is erroneous when applied to the testimony in this record. The judgment of the court below Avill therefore be affirmed. Affirmed.