Ash v. International Harvester Co.

58 So. 529, 101 Miss. 542

Opinion

Smith, J.,

delivered the opinion of the court.

Appellant purchased from appellee a gasoline engine for the sum of one thousand five hundred and seventy-five dollars. This engine was shipped from Chicago to appellant at Centerville, Miss., he paying the freight thereon, which amounted to one hundred and forty-three dollars. This engine seems to have been worthless. It could not be operated even by the employees of appellee who went to Centerville for that purpose, and consequently it was rejected by appellant. After its rejection, appellee made no disposition of it, but it remained, and still is, in appellant’s custody. Desiring to collect the freight paid by him and also compensation for storing and caring for the engine, and appellee being a foreign corporation, appellant instituted this suit by attachment, the writ being levied upon the engine. Appellee denied liability, and filed with its plea a demand for judgment against appellant for the price of the engine. The court by peremptory instruction charged the jury to allow neither appellant nor appellee anything, and from a judgment in accordance therewith an appeal was taken by the plaintiff in the court below; no appeal being taken by the defendant.

The peremptory instruction directing the jury not to allow appellant anything by his suit ought not to have been given. Appellee having broken its contract with appellant, he is entitled to recover from it all damages he has thereby sustained, included'in which, of course, is the freight paid by him on the engine. He is also entitled to recover a reasonable sum for storing and caring for the engine, unless he was directed by appellant not to store and care for it. .

Reversed and remanded.