Opinion
No. 39903.
April 16, 1956.
1. Appeal — Chancellor's conclusions on fact issue — review.
If Chancellor had substantial evidence to support conclusion reached by him on question of fact, Supreme Court would not be justified in reversing him on that finding.
2. Appeal — debtor and creditor relationship — Chancellor's finding — sustained.
Evidence sustained Chancellor's finding that relation between parties complainant and defendants was that of debtor and creditor rather than that of coadventurers, and warranted personal decrees against defendants based on that conclusion.
3. Sales — defective feed — evidence — insufficient to establish liability.
Where defendants by cross-bill sought damages claimed from defective feed furnished by complainant to defendants resulting in the death of chickens, evidence that feed sold was injurious to and caused death of chickens was too vague, indefinite and uncertain to establish liability, and consequently decree denying recovery would be affirmed.
Headnotes as approved by Roberds, P.J.
APPEAL from the Chancery Court of Pike County; F.D. HEWITT, Chancellor.
Breed O. Mounger, Tylertown; R.B. Reeves, McComb, for appellants.
I. The Court below was manifestly in error in holding that no joint enterprise or adventure existed as between the complainant and defendant and in holding that the defendants were liable to the complainant for losses incurred in joint enterprise or adventure. Chandler v. Cooke, 163 Miss. 147, 137 So. 496; Ford v. Commercial Securities Co., 220 Miss. 157, 70 So.2d 525; Sample v. Romine, 193 Miss. 706, 8 So.2d 257.
II. The complainant having taken over the entire operations prior to the maturity of the notes, the Court committed manifest error of law and fact in holding the defendants liable to the complainant for the losses incurred by the complainant in the enterprise. Cox v. Timlake, 169 Miss. 568, 153 So. 794.
III. The Court committed manifest error of law in rendering judgment as against the defendants beyond the scope of all pleadings. Allison v. Allison, 203 Miss. 20, 33 So.2d 619; Gaston v. Mitchell, 192 Miss. 452, 4 So.2d 892; Rutland v. McIntosh, 121 Miss. 437, 83 So. 635; Wright v. Coleman, 137 Miss. 699, 102 So. 774; Griffith's Miss. Chancery Practice (2d ed.), Secs. 565, 612 pp. 587, 612.
IV. It being established by the undisputed evidence that the defendant suffered material losses in the enterprise, the Court erred in dismissing the cross-bill as the matter became one of accounting and comparison of losses between the parties.
L.S. McLaren, N.B. Gillis, Jr., McComb, for appellee.
I. Appellants' liability to appellee for sums wrongfully converted by appellants arises by virtue of wrongful conversion, not by special promise to pay the debt of another; and is thus wholly outside the statute of frauds. Plamer v. Bridges, 151 Miss. 12, 117 So. 328; Sec. 264(a), Code 1942.
II. The Chancellor did not err in awarding appellee a judgment on the promissory notes executed by the appellant. The relationship between appellant and appellee was that of buyer and seller, and of borrower and lender, not partners or coadventurers. Chandler v. Cooke, 163 Miss. 147, 137 So. 496; Sample v. Romine, 193 Miss. 706, 8 So.2d 257, 9 So.2d 643, 10 So.2d 346; Ellis v. Pellegrini, Inc., 163 Miss. 385, 114 So. 273; Miller v. Board of Suprs. Lafayette County, 198 Miss. 320, 22 So.2d 372; Stuart v. Town of Morton, 200 Miss. 160, 26 So.2d 246; United States F. G. Co. v. State for Use of Ward, 211 Miss. 841, 53 So.2d 11; 30 Am. Jur., Sec. 3 p. 667; Annos. 48 A.L.R. 1055, 63 A.L.R. 910; 48 C.J.S., Joint Adventure, p. 801, et seq.
III. The decree did not exceed the scope of the pleadings in awarding judgment against Elouise Adams as one of the partners of the McComb Dressed Poultry Company. Barkwell v. Swan, 69 Miss. 917, 13 So. 809; Griffith's Miss. Chancery Practice (1st ed.), Sec. 387 p. 394.
IV. The cross-bill, being inconsistent with appellants' answer and defense, and not being supported by creditable evidence, was properly dismissed.
Appellants in reply.
I. The decree in favor of appellee cannot be upheld upon the theory of wrongful conversion nor upon the theory of being an account stated.
(Hn 1) The rights and liabilities of the parties involved in this appeal depend mainly upon whether the relation between John A. Adams and Elouise B. Adams, appellants, and McComb Milling Company, Inc., appellee, was that of debtor and creditor or that of coadventurers during the period of their business dealings. The chancellor found and adjudicated that relation to be that of debtor and creditor and rendered personal decrees against appellants based upon that conclusion. If he had substantial evidence to support that conclusion we are not justified in reversing him on that finding. This is a long record. (Hn 2) We have carefully reviewed and considered it. Without detailing the testimony, pro and con, on this question, we find that the chancellor not only had substantial testimony to support his conclusions and findings but that the great weight of the testimony disclosed by the record justifies such findings and conclusions. (Hn 3) Appellants were engaged in the business of raising and marketing small chickens. By cross-bill they sought a personal decree against the appellee for damage caused them, as claimed, from defective feed furnished by appellee to appellants for chicken feed, resulting in the death of many chickens. The chancellor denied the cross-bill. He correctly did that. The proof that the feed sold by appellee to appellants, which they fed to their chickens, was injurious to, and caused the death of, the chickens is entirely too vague, indefinite and uncertain to establish liability against appellee on those grounds.
Affirmed.
Hall, Lee, Kyle and Holmes, JJ., concur.