McNairy v. Gathings

Mississippi Supreme Court

McNairy v. Gathings

52 Miss. 592

DecidedApril 15, 1876

StatusPublished

This text of 52 Miss. 592 (McNairy v. Gathings) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McNairy v. Gathings, 52 Miss. 592 (Mich. 1876).

Pincite

Opinion

Campbell, J.,

delivered the opinion of the court.

We think the circuit court erred in allowing Gathings to testify that he notified plaintiff two or three times that the cotton was ginned and ready for him, and in giving the instructions to the jury asked by defendant, numbered 3, 4, 5, and 8, and in refusing the motion of plaintiff for a new trial. The plaintiff is clearly entitled to recover the value of 5,000 pounds of lint cotton, as stipulated in the contract, upon the state of case presented by the record. The action is assumpsit on an instrument of writing in these words and figures, viz.:

“Received, Monroe county, Miss., October 26th, 1864, of J. C. McNairy, three thousand dollars, in full payment for five [596]*596(5) thousand, pounds of lint cotton, to class middling. The said McNairy is to furnish the bagging and rope, and I promise to gin and bale as soon as convenient after gathering my corn. Fifteen hundred in Miss, cotton money, and fifteen hundred in new issue.

[Signed,] G. W. GathiNgs.”

This is an absolute and unconditional contract of sale of 5,000 pounds lint cotton for $3,000 received in payment for it, and the failure of McNairy to furnish bagging and rope to bale it deprived him of the right to claim that Gathings should bale it', but did not affect his claim on Gathings to deliver the lint cotton. Gathings was called on to fulfill his obligation, and neither did it, nor made any excuse for not doing it, nor did he in his testimony furnish any excuse for not doing it. His repeated notices to McNairy that he had ginned the cotton and had it ready for him were not a discharge from his obligation. If he had set apart 5,000 pounds “lint cotton, to class middlings,” and notified McNairy of this and kept it ready for delivery to him, and McNairy had disregarded, the notification and the cotton had been stolen or destroyed, a different state of case would be presented; but, as it is, there is disclosed no defense to plaintiff’s demand.

The judgment is reversed and the verdict set aside, and' cause remanded for a new trial.

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Campbell, J.,

delivered the opinion of the court.

We think the circuit court erred in allowing Gathings to testify that he notified plaintiff two or three times that the cotton was ginned and ready for him, and in giving the instructions to the jury asked by defendant, numbered 3, 4, 5, and 8, and in refusing the motion of plaintiff for a new trial. The plaintiff is clearly entitled to recover the value of 5,000 pounds of lint cotton, as stipulated in the contract, upon the state of case presented by the record. The action is assumpsit on an instrument of writing in these words and figures, viz.:

“Received, Monroe county, Miss., October 26th, 1864, of J. C. McNairy, three thousand dollars, in full payment for five [596]*596(5) thousand, pounds of lint cotton, to class middling. The said McNairy is to furnish the bagging and rope, and I promise to gin and bale as soon as convenient after gathering my corn. Fifteen hundred in Miss, cotton money, and fifteen hundred in new issue.

[Signed,] G. W. GathiNgs.”

This is an absolute and unconditional contract of sale of 5,000 pounds lint cotton for $3,000 received in payment for it, and the failure of McNairy to furnish bagging and rope to bale it deprived him of the right to claim that Gathings should bale it', but did not affect his claim on Gathings to deliver the lint cotton. Gathings was called on to fulfill his obligation, and neither did it, nor made any excuse for not doing it, nor did he in his testimony furnish any excuse for not doing it. His repeated notices to McNairy that he had ginned the cotton and had it ready for him were not a discharge from his obligation. If he had set apart 5,000 pounds “lint cotton, to class middlings,” and notified McNairy of this and kept it ready for delivery to him, and McNairy had disregarded, the notification and the cotton had been stolen or destroyed, a different state of case would be presented; but, as it is, there is disclosed no defense to plaintiff’s demand.

The judgment is reversed and the verdict set aside, and' cause remanded for a new trial.

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Bluebook (online)

52 Miss. 592, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcnairy-v-gathings-miss-1876.