Opinion
No. 34010.
February 26, 1940.
1. SALES.
In action to recover balance due on purchase price of engine, where evidence without dispute was in support of affirmative on issue of ratification of contract made on Sunday, and there was agreement, on only other issue, that if plaintiff was entitled to recover at all it should recover not less than $522.50 against one defendant, and recovery of that amount against such defendant entitled plaintiff to judgment against another in sum of $300, plaintiff's requested instruction that jury should return verdict against defendants in the respective amounts should have been granted.
2. JUDGMENT.
Where trial court improperly refused plaintiff's request for directed verdict, and jury returned verdict in favor of defendant, action of court in entering judgment for plaintiff notwithstanding the verdict was proper.
APPEAL from the circuit court of Hinds county; HON. J.P. ALEXANDER, J.
Green Green, of Jackson, for appellants.
Our position, simply stated, is that the trial court erred in entering judgment non obstante veredicto, because under the practice in this state, it is improper. We are aware that in certain cases it is available, but have found no authority in the statutes or decisions for such action when the defendant presents a good defense (here a set-off), even though a plea of confession and avoidance has been filed.
Garrett v. Beaumont, 24 Miss. 377, 381.
The doctrine stated in the Garrett case is to the effect that if a verdict for the defendant on his pleas would not give him a right to a judgment then judgment non obstante veredicto would be proper, but in this case the defenses urged by way of set-off are good, or so the jury determined, and hence the trial court must have erred.
With deference the court below misunderstood the effect of the agreement as to the minimum damages. The learned judge terms it a plea of confession and avoidance, and concludes that it is necessarily inconsistent with the validity of the contract under the general issue plea. We do not believe that the plea of set-off is inconsistent under our liberal code sections or that it was proper for the court to hold the defense insufficient in law.
11 Ency. Plead. and Practice, 915; Neely v. Allis-Chalmers Mfg. Co., 174 Miss. 519, 165 So. 114.
The trial court erred in entering judgment for appellee because on prior appeal this court established the law of the case. In reversing on the prior appeal this court said: "We cannot say from the record that the evidence of ratification is without conflict; therefore it was a question for the jury." 177 So. 655.
We insist that that statement became the law of the case and the trial judge was bound thereby. A general statement of the controlling effect of such an utterance as this by the appellate court is found in 5 C.J.S. 1499, Sec. 1964.
Commercial Union Fire Ins. Co. v. Kelly, 115 So. 400; Dickerson v. Western Union Tel. Tel. Co., 114 Miss. 115, 74 So. 779; 4 C.J. 1213; Carlson v. Northern Pac. R.R. Co., 281 P. 913; Davis, Agent, v. M.A. Pharr Cotton Co. (Ga.), 122 S.E. 623; L. N.R. Co. v. Cornett's Admr. (Ky.), 35 S.W.2d 10; Hutcherson v. Towne, 241 P. 917; Howland v. Fenner, 252 P. 962.
It is reversible error for the trial court to ignore this law of the case.
5 C.J.S. 1557, Sec. 1994; 4 C.J. 1243, notes 68 69.
We insist that if there was sufficient evidence to take the case to the jury on the question of ratification in the first trial, there still is, and it necessarily follows that the trial court erred in granting judgment non obstante veredicto for appellee. Particularly is this true where the evidence on the two trials is substantially the same. As we pointed out above, appellee introduced the entire record of the testimony of their witnesses on the first trial to establish their case in the second trial. Obviously, their evidence is the same in both trials, and, being so, it is amazing that the trial judge could hold in the first trial that ratification was not an issue, and then in the second trial return judgment for appellee predicated upon a holding that the illegal contract was ratified as a matter of law. So we say that under the line of cases cited above the law of the case has been established and the court below erred in failing to submit the question of ratification to the jury by deciding it himself as a matter of law.
J.S. Penn, one of the appellants, never ratified the illegal contract.
Lotterhos Travis and Vardaman S. Dunn, all of Jackson, for appellee.
We respectfully submit on cross-appeal that the trial court erred in refusing appellee's requested peremptory instructions at the conclusion of the testimony, and therefore that a judgment should be entered by this court in favor of appellee and against the respective appellants for the minimum liquidated amounts.
W.F. Moody Co., Inc., v. Boyle Gin Co., Inc., 180 Miss. 522, 177 So. 654; McKinney v. Demby, 44 Ark. 74; Planters' Fire Ins. Co. v. Ford, 106 Ark. 568, 153 S.W. 810, 44 L.R.A. (N.S.) 289; McElhannon v. Coffman, 173 Ark. 60, 292 S.W. 393; Oliphant v. Oliphant, 177 Ark. 613, 7 S.W.2d 783.
We respectfully submit in answer to the direct appeal that the judgment, notwithstanding the verdict of the jury, was proper from a procedural standpoint, but, if mistaken in this, appellee is entitled to a judgment on its cross-appeal on the grounds stated under point one of the argument.
Dement v. Summer, 175 Miss. 290, 165 So. 791; Y. M.V.R. Co. v. Wallace, 90 Miss. 609, 43 So. 469; Hairston v. Montgomery, 102 Miss. 364, 59 So. 793; Schaffer v. Deemer Mfg. Co., 108 Miss. 257, 66 So. 736; Edwards v. Y. M.V.R. Co., 112 Miss. 791, 73 So. 789; Gooch v. Coleman, 143 Miss. 447, 109 So. 18; Banfill v. Byrd, 122 Miss. 288, 84 So. 227; Welch v. Kroger, 180 Miss. 89, 177 So. 41; Southeastern Express Co. v. Namie, 182 Miss. 447, 181 So. 515; Mohundro v. Bd. of Supervisors of Tippah County, 174 Miss. 512, 165 So. 124; Baltimore C. Line v. Redman, 295 U.S. 654, 79 L.Ed. 1636; Garrett v. Beaumont, 24 Miss. 377; State v. Commercial Bank, 6 S. M. 218, 45 Am. Dec. 280; Bd. of Supervisors of Lamar County v. G. S.I.R. Co., 118 Miss. 243, 79 So. 90; Heard's, Stephen on Pleading; Mitchell v. State, 179 Miss. 814, 176 So. 743; Rule 50, District Court Rules of Civil Procedure.
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.