Opinion
No. 39594.
May 2, 1955.
1. Appeal — Chancellor's findings — conclusions of law — sustained.
Record on appeal from Chancery Court sustained Chancellor's findings of fact and conclusions of law.
Headnote as approved by Arrington, J.
APPEAL from the Chancery Court of Warren County; S.B. THOMAS, Chancellor.
Teller Biedenharn, Vicksburg, for appellant.
I. Appellee was not entitled to invoke aid of court of equity. Allison v. Allison, 203 Miss. 15, 33 So.2d 289; Butterfield Lumber Co. v. Guy, 92 Miss. 361, 46 So. 78; Frierson v. Sheppard, 201 Miss. 603, 29 So.2d 726; Gaston v. Mitchell, 192 Miss. 452, 4 So.2d 892; Watson v. Owen, 142 Miss. 676, 107 So. 865.
II. Appellant's assignor (Lowe) had a right to contract that he would be released of liability without binding or requiring appellant or any other party to assume that liability. Butterfield Lumber Co. v. Guy, supra; Cox v. Reed, 113 Miss. 488, 74 So. 330, 11 A.L.R. 5; Gaston v. Mitchell, supra; Hawkins v. Shield, 100 Miss. 739, 57 So. 4, 4 A.L.R. 760; H. Weston Lumber Co. v. Lacey Lumber Co., 123 Miss. 208, 85 So. 193, 10 A.L.R. 436; Pack v. Thomas, 21 Miss. 11, 13 Sm. M. 11, 51 Am. Dec. 135; Pollock v. Helm, 54 Miss. 1, 28 Am. Rep. 342; Taliaferro v. Ferguson, 205 Miss. 129, 38 So.2d 471; Williams v. Batson, 186 Miss. 248, 187 So. 236, 128 A.L.R. 1144; World Fire Marine Ins. Co. v. King, 187 Miss. 699, 191 So. 665.
III. Appellee was not entitled to have the contract reformed because neither evidence submitted nor law applicable warranted that relief. Allison v. Allison, supra; Dale v. Case, 217 Miss. 298, 64 So.2d 344; Frierson v. Sheppard, supra; Rogers v. Clayton, 149 Miss. 47, 115 So. 108; Wise v. Brooks, 69 Miss. 891, 13 So. 837.
IV. Since appellant neither made note sued on nor assumed or agreed to pay it, decree holding appellant personally liable thereon was unjustified. Thompson v. Gore, 180 Miss. 560, 178 So. 81; Whitney Central Natl. Bank v. First Natl. Bank of Hattiesburg, 158 Miss. 93, 130 So. 99; Secs. 161, 233, 264, Code 1942.
V. Because of its inequitable conduct, coupled with its failure to make or even to unqualifiedly offer to make restitution, appellee was barred of any right to recover. Bentley v. Tibbals, 138 C.C.A. 489, 223 Fed. 247; Brown v. Brown, 66 Conn. 493, 34 A. 490; C.F. Simmons Medicine Co. v. Mansfield Drug Co., 93 Tenn. 94, 23 S.W. 165; Conners v. Conners Bros. Co., 110 Maine 428, 86 A. 843; Galloway v. Inglis, 138 Miss. 350, 103 So. 147; In re Stoball's Will, 211 Miss. 15, 50 So.2d 635; Kenyon v. Weissberg, 240 Fed. 536; Moss v. Miss. Livestock Sanitary Bd., 154 Miss. 765, 122 So. 776; Mullins v. Taylor, 132 Miss. 551, 97 So. 5; Semonin v. Duerson, 13 Ky. 169; Taliaferro v. Ferguson, supra.
VI. If appellee was entitled to any decree against this appellant, then offset should have been made for all personal property owned by appellee and withheld from the trade or later taken by appellee. 30 Words and Phrases 595-99.
VII. If appellee was entitled to any decree, then offsets actually allowed by Court below and those which should have been further allowed should be based on market value and not just factory costs.
VIII. Appellee should not have been permitted any recovery of attorney's fees.
IX. The decree obtained in appellee's favor should be reversed and decree here rendered for appellant.
Dent, Ward Martin, Vicksburg, for appellee.
I. The Chancellor was correct in holding that the contract between Droge and Robert R. Lowe should be reformed. Coffee v. Coffee (Miss.), 24 So. 262.
II. The appellant is liable because it received all of the benefits of the sale. Allen Gravel Co. v. Nix, 129 Miss. 809, 93 So. 244; Belzoni Oil Co. v. Yazoo M.V.R.R. Co., 94 Miss. 58, 47 So. 468; Burnett's Lbr. Supply Co. v. Commercial Credit Co., 211 Miss. 53, 51 So.2d 54; Carey-Halliday Lbr. Co. v. Cain, 70 Miss. 628, 13 So. 239; Watts Mercantile Co. v. Buchanan, 92 Miss. 540, 46 So. 66.
III. Appellee is not guilty of any inequitable conduct. American Crayon Co. v. Prang Co., 38 F.2d 448; Comstocke v. Thompson (Pa.), 133 A. 638; Harlan v. Willard (Cal.), 198 P. 424; Lavretta v. First Natl. Bank of Mobile (Ala.), 178 So. 3; McClellan v. McCauley, 158 Miss. 456, 130 So. 145; Morgan v. Collins School House, 160 Miss. 321, 133 So. 675; Stockwell v. McCalvay (Cal.), 74 P.2d 504; 30 C.J.S. Equity, Sec. 95.
A. Appellant is liable for indebtedness sued upon under Bulk Sales Act. Marquette Co. Savings Bank v. Koivisto (Mich.), 127 N.W. 680; National Grocer Co. v. Hanna (Mich.), 133 N.W. 493; Sec. 274, Code 1942; Anno. 15 A.L.R. 938.
IV. The Court below was correct in denying appellant credit for the items set out in assignment No. 7 of the appellant's assignment of error.
V. The Court erred in giving the appellant credit for $2,793.60.
VI. There is no consideration to support the release of Lowe individually. 17 C.J.S., Contracts, Sec. 71.
VII. Appellee is entitled to attorney's fees. Godchaux Sugars, Inc. v. Fink, 188 Miss. 531, 195 So. 318; 11 C.J.S., Bills and Notes, Sec. 726.
VIII. The Court below erred in failing to grant the motion of complainant for a writ of attachment and in failing to appoint a master in chancery. Sec. 337, Code 1942.
IX. There is no merit in appellant's claim that the setoff should be allowed at retail value. Bank of Forest v. Capital Natl. Bank, 176 Miss. 163, 169 So. 183; Lancaster v. Jordan Auto Co., 185 Miss. 530, 187 So. 535; Wehle v. Haviland, 69 N.Y. 448; Griffith's Miss. Chancery Practice (1st ed.), Chap. 38.
APPELLANT IN REPLY.
I. No right to reformation of the bill of sale proven or legally justified. Oliver v. Board of Supervisors, 211 Miss. 447, 51 So.2d 766.
II. Appellant never obligated itself to pay the note sued on nor did it assume any such obligation.
III. Appellee barred of any right to recovery or to any equitable relief whatsoever because of its own inequitable conduct. Morgan v. Collins School House, 160 Miss. 321, 133 So. 675.
IV. While appellee argues that no credit should be allowed, it does not really attempt an answer to the facts of record relied upon by appellant to conclusively show that appellee owned and wrongfully took or withheld other items for which no credit was allowed by the Chancellor.
V. All articles now in controversy were owned by appellee and accordingly included in trade, and in all events credit should be given appellant for all of them if any recovery permitted.
VI. The Bulk Sales Law was not here applicable — provisions being waived — to afford recovery to appellee, nor was that Law properly invoked. Allison v. Williams, 142 Miss. 825, 108 So. 142; Buckley v. United Gas Public Service Co., 176 Miss. 282, 168 So. 462; Burt v. Roberts, 212 Miss. 576, 55 So.2d 164; Crawley v. Ivy, 149 Miss. 764, 116 So. 90; Miller-Allaire Co. v. Hutcherson, 147 Miss. 453, 112 So. 589; Turner v. Simmons, 99 Miss. 28, 54 So. 658; Sec. 753, Code 1942; Anno. 15 A.L.R. 2d 943.
VII. There was no error committed by the Court below in failing to issue an attachment or to appoint a master or to affix any lien under the law applicable to vendor's liens. Coleman v. Lucas, 206 Miss. 274, 39 So.2d 879; Dunn Constr. Co. v. Craig, 191 Miss. 682, 2 So.2d 166; Garland v. Hull, 21 Miss. 76, 13 Sm. M. 76; Gulf S.I.R.R. Co. v. Laurel Oil Fertilizer, 172 Miss. 630, 160 So. 564; Hargrove v. Baskin, 50 Miss. 197; Rankin v. Ford, 160 Miss. 802, 134 So. 180; Sanders v. Neely, 197 Miss. 66, 19 So.2d 424; Waits v. Black Bayou Drainage Dist., 186 Miss. 270, 185 So. 577; Secs. 337, 341, et seq., Code 1942; 33 Am. Jur., Secs. 25, 44 pp. 432, 440; 46 Am. Jur., Sec. 520.
(Hn 1) We have carefully reviewed the record in this case, and we are of the opinion that the conclusions reached by the chancellor, both as to the law and the facts, are correct. It follows, therefore, that the cause should be and is affirmed on both direct and cross appeal.
Affirmed on direct and cross appeal.
McGehee, C.J., and Lee, Holmes, and Ethridge, JJ., concur.