Johnson v. Tootle , 126 Miss. 21 ( 1921 )

Syices, P. J.,

delivered the opinion of the court.'

The appellee, Andrew Tootle, filed suit before a justice of the peace against the appellant, alleging that he made a contract with the appellant (defandant in the lower court) to gin a bale of cotton for him and then ship it by defendant’s boat to. the T. G. Bush Grocery Company of Mobile, Ala.; that the defendant failed to ship the cotton by boat, and at a later date shipped a bale of cotton, purporting to be the six hundred pound bale of plaintiff, but that the bale so shipped netted plaintiff only four hundred fifty-eight pounds, for which he received twenty-three cents a pound. Plaintiff also avers that the market price of cotton at the time the shipment should have been made was twenty-six cents a pound, and that his bale of cotton at that time would have brought one hundred fifty-six dollars, whereas it only sold for one hundred five dollars and thirty-four cents. It is averred that the loss in weight of the cotton was due to damage sustained by reason of the delay in shipment and exposure to the weather, making it necessary to pick off a certain part of the damaged cotton, and also reducing the value of the remaining cotton. The suit was therefore filed for this alleged damage amounting to fifty dollars and sixty-six cents. In due course the case was appealed to the circuit court,- and in that court plaintiff recovered a judgment for the amount sued for. Prom which judgment the case is appealed to this court.

The principal contention of the appellant is that he was entitled to a peremptory instruction in the circuit court.

The material testimony in the case is as follows: The plaintiff testified that he carried five bales of cotton to the gin of the defendant, and made a contract with the defendant’s agent to gin and ship the five bales of’cotton to Mobile by the defendant’s boat; that four of these five bales were shipped by boat, but in some way the fifth bale was not, and this controversy arises about the fifth bale. This bale of cotton weighed six hundred pounds at the gin of the defendant. After it was found out that the defendant had in some way failed to ship this bale of cotton along with the other four bales, the defendant then shipped by railroad this bale with two other bales of cotton -in the name of J. L. Tootle, a brother of the plaintiff, consigned to the Bush Grocery Company, Mobile. The plaintiff testified that all five of the bales of cotton were raised on the same character of land, and were of the same grade and staple. Over the objection of the defendant the plaintiff was allowed to testify that the four bales of cotton, which were shipped by boat in accordance with the contract, sold in Mobile for twenty-six cents a pound. His testimony further shows that he was not in Mobile at the time the cotton was sold, that he did not know the market price of cotton at that time, and that he is really testifying to this fact because of statements received from Bush in Mobile to the effect that his cotton sold for that price. This testimony was hearsay, and should have been excluded. The plaintiff’s only source of information or knowledge was derived from these sales statements which he received from Bush. Over the objection of the defendant, plaintiff was also allowed to prove that his fifth bale of cotton, which had. Aveighed six hundred pounds at the gin, only weighed four hundred fifty-eight pounds when it was received by Bush in Mobile, that it had in some way become damaged, and it was necessary for some of it to be scraped off, and that this four hundred fifty-eight pound bale brought twenty-three cents a pound. The witness further stated that he was not in Mobile at this time, and his testimony shows that his only information about the damage to thi^ cotton, the shortage in weight, and the price for which it sold, was information he received from the Bush Grocery Company. A mere statement of this testimony shoAVS that it is hearsay testimony, and should have been excluded.

The only items of damage claimed by the plaintiff were the loss in Aveight of the cotton and the difference of three cents a pound which he claims he lost by reason of the failure to ship the cotton by boat along with the other cotton. He has failed to prove by competent, testimony these damages, and for this reason the peremptory instruction requested by the defendant should have been granted.

Reversed, and judgment here for the appellant.