Durham v. Slidell Co. , 94 Miss. 140 ( 1908 )

■Whiteteld, O. J.,

delivered the opinion of the court.

A most careful scrutiny of the testimony in this record fails to show that William L. Durham was a “trader,” within the meaning of our sign statute. Section 4184 of the Code of 1906. The evidence, taken as a whole, shows that the stable he kept was a livery and feed stable, rather than a livery and sales stable. There is no competent evidence of any sale made by him, except of one vehicle. There is certain other testimony about sales; but that testimony is wholly hearsay, and, of course, incompetent. “One swallow does not make a summer,” nor one sale a trader. There is also some meager testimony about hiring teams. The very bill head, introduced by the plaintiff in execution as tending to show that William L. Durham had a sign showing that he was doing business in his own name, expressly recites that it was a “livery and feed stable,” and besides, this bill head was simply one of many loose bill heads found in the office on the desk, gnd it is not at all certain from the testimony that it may not have been a bill head used by William L. Durham when he was conducting a livery stable in his own name, some time before this. There was no sign about the place anywhere, and this bill head amounts to nothing, on the testimony in this case, and tends to show, if anything, that the stable was a livery and feed stable.

On the whole testimony, it was plainly error for the court to give the peremptory instruction, as it did, to find for the plaintiff in execution. The case should have gone to the jury.

Reversed and remanded.