Boyle Gin Co. v. W. F. Moody & Co.

193 So. 917, 188 Miss. 44, 1940 Miss. LEXIS 18

• Court: Mississippi Supreme Court
• Decided: February 26, 1940
• Docket: No. 34010.
• Status: Published

Opinion

Griffith, J.,

delivered the opinion of the court.

On the first trial of this case, it was held by the circuit court that there could be no recovery because the contract was made on Sunday and a peremptory instruction was granted. On appeal we held that there was sufficient evidence of ratification on secular days to escape a peremptory charge. Moody & Co. v. Boyle Gin Co., 180 Miss. 523, 177 So. 654.

On the second trial all the evidence, without dispute, was in support of the affirmative on the issue of ratification, and there was an agreement, on the only other issue, that if appellee was entitled to recover at all it should recover in not less than the sum of $522.50 against the gin company; and, inasmuch as this amount of recovery against the latter entitled appellee to have a judgment against Penn in the sum of $300-, appellee requested instructions that the jury should return verdicts against the respective appellants in said respective amounts, which instructions the court should have granted, but did not grant.

Upon submission of the case to the jury, a verdict was returned in favor of both defendants that the plaintiff, appellee, here, recover nothing, whereupon, in the presence of the jury and before it was discharged appellee moved for the entry of a judgment in appellee’s behalf non obstante veredicto, which motion the court sustained, and properly so, inasmuch as thereby the court effectively, and in a convenient and simple manner, corrected the error which it had made in not granting the instructions above mentioned when the case was submitted to the jury, and which if then granted would have brought about the proper result later effectuated on the motion for a judgment notwithstanding the verdict.

Affirmed.