Opinion
No. 33629.
March 27, 1939. Suggestion of Error Overruled April 24, 1939.
1. SET-OFF AND COUNTERCLAIM.
In action for conversion of automobile which plaintiff delivered to automobile dealer as part of purchase price of new automobile which dealer refused to deliver to plaintiff after plaintiff wrecked used automobile which dealer loaned to plaintiff pending delivery of new automobile, dealer could not set-off or recoup unliquidated damages for wrecking of automobile which involved a separate transaction (Code 1930, sections 537, 538).
2. SALES.
Where automobile dealer took buyer's old automobile as part of purchase price of new automobile which dealer refused to deliver, buyer could elect whether to sue for damages for breach of contract or to demand return of old automobile, or to take value of old automobile if it had been converted.
3. PLEADING.
Under statute providing that declaration should contain statement of facts constituting the cause of action, form of declaration is immaterial (Code 1930, section 521).
4. TROVER AND CONVERSION.
A declaration for conversion of old automobile, which automobile dealer took as part of purchase price of new automobile which dealer refused to deliver after buyer wrecked used automobile which dealer loaned to plaintiff pending delivery of new automobile, was sufficient to state cause of action (Code 1930, sections 521, 567, 568).
5. TROVER AND CONVERSION.
In action for conversion of old automobile which automobile dealer took as part of purchase price of new automobile which dealer refused to deliver, value of old automobile at time of conversion was the test, and not value agreed on as a credit on new automobile or price received from third person to whom dealer sold old automobile.
6. SET-OFF AND COUNTERCLAIM.
A demand which defendant can set off against demand of plaintiff must arise by contract and must be certain (Code 1930, sections 537, 538).
7. SET-OFF AND COUNTERCLAIM.
A recoupment for an unliquidated amount must spring from the same transaction which is the subject matter of the suit.
8. ACTION.
Where a suit is brought in Mississippi where the defendant is domiciled, all matters of procedure must be controlled by the laws of Mississippi.
9. EXECUTION.
Where defendant's demand against plaintiff could not be made the subject of recoupment or set-off, but must be presented by separate suit, the defendant, in the event of plaintiff's insolvency, could protect itself by stay of execution or injunction to stay proceedings until determination of separate suit.
APPEAL from the circuit court of Adams county; HON. R.E. BENNETT, J.
Engle Laub of Natchez and Jos. M. Reeves, of Vidalia, La., for appellant.
Renunciation of liability in the course of performance is a ground for rescission. Where a party has partially performed a contract on his side and a renunciation is made by the other party in the court of performance, or where such other party prevents or makes further performance impossible, the party injured may treat the contract as rescinded and sue at once on a quantum meruit to recover for what he has performed or what has been paid by him.
A repudiation before the time when performance is due warrants rescission by the other party and a recovery upon quantum meruit as far as he has performed. Upon the anticipatory repudiation of a contract by one party, the other may rescind the contract and recover the value of any performance rendered.
12 Am. Juris., Contracts, sec. 442, pages 1024-5.
This is what the appellant sought to do in this case when he filed his suit against the appellee setting up the facts of the contract, the repudiation of same by the appellee, the selling of his car by the appellee and the putting of the money in its pocket and the refusal of the appellee to do anything about it. To justify its conduct the appellee took the position that as the car it had loaned the Lancasters had been injured while being driven by Mrs. Lancaster that the appellee was, therefore, released from any liability to the appellant.
This position is absolutely untenable and no justification for it can be found in any statutory law or in any reported decision of any court. Attention is called to the fact that the appellee did not plead the damage its car had suffered in the wreck by way of recoupment or by way of set-off, and a study of its notice of special matter will show that it claimed its car was worth $500 when delivered to the Lancasters and that when it was taken possession of by the appellee after the accident it was not in the condition it was in when delivered to the Lancasters.
Even had the appellee pleaded by way of recoupment or set-off and even had the circumstances of the damage to the car of the appellee been such as to render the appellant liable for such damages, then the most that the appellee could have claimed was a credit for the cost of restoring its car to its former condition.
The doctrine is well established that the breach of one contract does not justify the aggrieved party in refusing to perform another separate and distinct contract.
12 Am. Juris., sec. 438, page 1019.
The jurisprudence of Mississippi and Louisiana holds the bailee to that measure of care of the bailed property as an ordinarily careful or prudent man would give to his own property.
Miss. Digest, Bailment, Key No. 11; Meine v. Mossler Auto Exchange, Inc., 120 So. 533; Gulf Ship Island R. Co. v. Sutter Motor Co., 126 So. 458; Greenville Insulating Board Co. v. McMurray, 145 So. 730; Royal Ins. Co., Ltd., v. Collard Motors, 179 So. 108.
The law is plain that the bailee is not an insurer of the bailed property nor liable for value thereof when destroyed without his negligence.
The appellee made no effort to check up on the amount of the damage or do anything further to minimize the loss, but simply took possession of the car through its agent, Mr. Cobb, and placed it in a garage and did nothing more except take the position that the contract with appellant was thereby cancelled.
Weis v. Pan American Petroleum Co., 126 So. 90.
Nowhere is it contended that the appellant was guilty of any negligence. There is no proof that his wife, who was driving the car, was guilty of any negligence, but, on the contrary, incontrovertible proof that she was driving the car prudently, carefully and safely, and that no accident would have resulted but for the fact that the brakes caught and the car was thrown at right angles across the highway in the path of the oncoming car.
Under the law of Louisiana married women are completely emancipated as in Mississippi.
Act No. 283, 1928 Regular Session of the Legislature of Louisiana; Adams v. Gholson, 174 So. 876.
We say with confidence that, regardless of how the damage and injury to the car of the appellee happened, and regardless as to whose fault is responsible for that accident, this appellant was in no wise chargeable with any resulting damages.
The appellant had a right to rely that the car when turned over to him for use of himself and family was in good mechanical condition and nothing had occurred to cause him to anticipate such an accident as did happen, nor had Mrs. Lancaster observed anything to cause her to anticipate such an accident.
The bailor, by the bailment, impliedly warrants that the thing hired is of a character and in a condition to be used as contemplated by the contract, and he is liable for damages occasioned by the faults or defects of the article hired.
6 Am. Jur., Bailments, sec. 189, page 284, and sec. 190, page 284; Williamson v. Phillipoff, 64 So. 269; Southern Digest, Bailments, Key No. 9; Swift Refrigerator Trans. Co. v. Internation Molasses Co., 10 Orleans App. 117; Restatement of the Law, Torts, sec. 408, page 1096; 12 A.L.R. 774-777; Cooper v. Layson Bros., 14 Ga. App. 134, 80 S.E. 666, 8 N.C.C.A. 718; Mallory S.S. Co. v. Druham, 84 So. 874; Windle v. Jordan, 75 Me. 149; Horne v. Meakin, 115 Mass. 326; Gagnon v. Dana, 69 N.H. 264, 41 L.R.A. 389, 76 A.S.R. 170, 39 A. 982; Cooke v. New York Floating Dry Dock Co., 1 Hilt. 436; Kissam v. Jones, 56 Hun. 432, 10 N.Y. Supp. 94; Conn v. Hunsberger, 224 Pa. 154, 25 L.R.A. (N.S.) 372, 132 A.S.R. 770, 73 A. 324, 16 Ann. Cas. 504; Jones v. Page, 15 L.T. (N.S.) 619; Fowler v. Lock, L.R.N., 7 C.P. 272, L.R., 10 C.P. 90; Mowbray v. Merryweather, 2 Q.B. 640, 65 L.R.Q.B. (N.S.) 50, 14 Reports, 767, 73 L.T. (N.S.) 459, 44 Week. Rep. 49, 59 J.P. 804; Vogan v. Oulton, 81 L.T. (N.S.) 435, 16 Times L.R. 37; Williamson v. Phillipoff, 66 Fla. 549, 52 L.R.A. (N.S.) 412, 64 So. 269; Bass v. Cantor, 123 Ind. 444, 24 N.E. 147; Swigert v. Graham, 7 B. Mon. 661; Leach v. French, 69 Me. 389, 31 Am. Rep. 296; Famous Planers Film Co. v. Salomon, 106 A. 282; Harrington v. Snyder, 3 Barb. 380; Pneumatic Scale Corp. v. Ideal Cocoa C. Co., 62 Pa. Super. 30; Baker L. Mfg. Co. v. Clayton, 40 Tex. Civ. App. 586, 90 S.W. 519; Sims v. Chance, 7 Tex. 561; Chew v. Jones, 10 L.T. 231; Reynonds v. Roxburgh, 10 Ont. Rep. 649; Garrettson Co. v. Rinehart D. Co., 75 W. Va. 700, 84 S.E. 929.
It has been held that in bailments for hire the bailor's liability for personal injuries due to defective condition of the chattel bailed depends on whether the bailor knew of the defect, or, if not, whether it was discoverable by him through the exercise of due care.
Stanley v. Steele, 77 Conn. 588, 69 L.R.A. 561, 60 A. 640, 2 Ann. Cas. 342, 18 Am. Neg. Rep. 20; Nisbert v. Wells, 25 Ky. L. Rep. 511, 76 S.W. 120; Copeland v. Draper, 157 Mass. 558, 19 L.R.A. 283, 34 Am. St. Rep. 314, 32 N.E. 944; Conn v. Hunsberger, 224 Pa. 154, 25 L.R.A. (N.S.) 372, 132 Am. St. Rep. 770, 73 A. 324; Akers v. Overbeck, 18 Misc. 198, 41 N.Y. Supp. 382; Moriarty v. Porter, 22 Misc. 536, 49 N.Y. Supp. 1107; Emmons v. Stevane, 77 N.J.L. 570, 24 L.R.A. (N.S.) 458, 73 A. 544, 18 Ann. Cas. 812; Campbell v. Page, 67 Barb. (N.Y.) 113; Talmage v. Mills, 80 App. Div. 382, 80 N.Y. Supp. 637; Windle v. Jordan, 75 Me. 149.
A bailor who holds himself out as in the business of letting vehicles for hire owes a duty to supply a vehicle as fit for the purpose for which it is hired as care and skill can render it.
6 Am. Jur., sec. 195, pages 288-289; Saunders System Birmingham Co. v. Adams, 217 Ala. 621, 117 So. 72, 61 A.L.R. 1333; 12 A.L.R. 781, 61 A.L.R. 1337; 19 L.R.A. 283; 5 Am. Jur., Automobiles, sec. 349, page 690, sec. 358, page 698; Sears v. Interurban Transp. Co., Inc., 125 So. 748.
Under the law of Louisiana a bailment is called a deposit, and the rights between the parties are regulated by statute.
Civil Code of Louisiana, arts. 2315, 2692, 2695 and 2960; Schoppel v. Dailey, 36 So. 322; May v. Schiepes, 147 So. 717.
We have gone to great length herein, and probably unnecessarily, to give the court a full exposition of the law of Louisiana with reference to the obligations of the bailor and of the bailee with respect to the article bailed or deposited or loaned or leased. We say much of this is probably unnecessary because it is clear that the appellant was not using the loaned or deposited or bailed car at the time of the accident and is not in any wise responsible for what happened to the car while being used by another person, namely, his wife, who had, according to the testimony of Mr. Metcalfe and Mr. Lancaster, the same right to use the car that Mr. Lancaster had, and at the time of the accident she was using the car solely for her own purpose. The law is clear and settled beyond question that the husband is not responsible for the torts of his wife, especially when committed out of his presence, and especially when she is engaged on her own business. It is our judgment that the establishment of these facts regarding who had possession of the car at the time of the accident is an absolute defense to any contention of the appellee that Lancaster should be held responsible for the consequences of the accident.
We confidently expect that this court will rectify this situation by reversing the judgment of the lower court and rendering judgment in favor of the appellant for the $500 with legal interest from the date appellee repudiated the contract and refused to carry it out (March 1st) or from the date appellee sold appellant's car and collected the $500 net over and above cost of repairs, which is March 9, 1937.
Under no conceivable view of the law could this case be affirmed, because even though appellant should be considered liable for damages to the car of the appellee the liability would not and could not extend beyond the amount of such damage, and the only direct testimony as to the amount of such damage is the testimony of the mechanic Cleveland that the car would be restored for $150.
However, we confidently assert that there does not exist in the law books and in the jurisprudence of Louisiana or Mississippi any legal principle upon which appellant, Lancaster, could be held responsible for the damages this loaned car received. Chaney Culkin, of Vicksburg, and Joseph E. Brown, of Natchez, for appellee.
As we understand it, there are two major questions involved in this case. First, does the evidence show an unlawful conversion by the appellee? Second, to whom are the injuries and damages to appellee's car chargeable?
As to the first proposition, we submit that the entire evidence shows that the appellant in delivering to the appellee his automobile in the early part of January, 1937, as a trade-in and receiving a credit with appellee in the sum of $500 therefor, neither retained nor reserved any ownership, interest or title in the car, either legal or equitable. The facts in the record which demonstrate the truth of this assertion have been set out at length and need no further mention or repetition. In addition to the fact that no title or ownership was reserved, either expressly or by any conceivable implication, there is the further fact, as testified to by both the appellant himself and the president of the appellee, that a resale of the automobile traded to the appellee was anticipated. The appellee intended selling the car. Mr. Lancaster knew it. Both sides are in agreement, in the proof, upon the fact.
At no time subsequent to the trade-in agreement in early January, 1937, until the filing of this action, has the appellant asserted any further demand to the car, or right or interest therein. He has not at any time prior to the filing of this action demanded back the possession of the car he traded in. He has not undertaken to rescind the contract under which the appellee took both the title and the possession of the car. Even after the wreck, at a time fixed by the appellant at "between the first and the 15th of March" when the discussion of their differences took place between the appellant and Mr. Metcalfe, we find Mr. Lancaster simply demanding the new car, and urging the appellee to allow him full credit of the original $500 credit, and then either come to his own bailwick, his own native heath and sue him for the damage done to the appellee's automobile, or simply whistle for its money.
This was no action instituted in chancery, seeking to compel specific performance, with the appellant tendering into court the money difference between the price of a new car and the $500 credit.
How did the conversion take place? The declaration alleges that it took place by the appellee "having converted his car to its own use, selling same to a third party."
In the case of Hook v. Bank of Leland, 98 So. 594, 134 Miss. 185, this court held that as to the remedy of trover for wrongful conversion, "An equitable title alone is not sufficient foundation of the remedy of trover."
38 Cyc. 2049; Farmers' Loan Trust Co. v. Avera, 7 So. 358.
The present action is manifestly trover, for an alleged wrongful conversion. The declaration alleged title and ownership in the plaintiff at the time of the alleged conversion. The proof showed otherwise.
We make no criticism of the declaration. Legal title and ownership in the appellant was indispensable to an action for wrongful conversion. The declaration alleged, repeatedly, title and ownership in the appellant on the date of the alleged conversion. This material and proper allegation was never proved. To the contrary, the appellant himself testified that he reserved no ownership, no title. Therefore the appellant's proof failed in an indispensable particular and the court below quite properly directed a verdict in favor of the appellee. Counsel for the appellant can properly ask no reversal of this case. The defensive pleadings of the appellee clearly set up a denial of legal title or ownership in the plaintiff. The appellant himself, in his testimony, established this defensive pleading, this notice which traversed and denied the appellant's most material allegation in his declaration. We submit, upon this proposition, that this case should be affirmed.
To whom are the injuries and damages to appellee's car chargeable? Upon this proposition we respectfully submit that the appellee, in delivering to the appellant its car for his convenience pending the arrival of the new car, fulfilled its full duty. The car which appellant had traded to the appellee was badly in need of repairs, had blown an engine head gasket. It could scarcely be driven. It was not serviceable to the appellant. Viewed most favorably to the appellant, the lending to him of the appellee's car constituted a bailment for the mutual benefit of both parties.
The appellee, as bailor, did not become an insurer. Its obligation was that the car "be reasonably fit for the purpose, or capable of the use known to be intended," in short, that it be "in proper condition when delivered."
C.J.S., Bailments, sec. 25, page 258.
That the appellee fulfilled this duty, and that the car was in proper condition when delivered, is absolutely undisputed.
Counsel for the appellant say, even though the car of the appellant were injured and destroyed as the result of the negligence of appellant's wife, he is not liable for her torts under the law of Louisiana, and that the courts therefore must ignore this negligent destruction of the bailed property. As a matter of law, this unjust situation does not exist, nor does such an unjust result follow. The appellant, according to his testimony, used the car as if it were his, and testified that during the time he had it the car was used by himself and his wife. This was by his volition, by his determination, by his decision. He placed the car in his wife's custody. He alone made possible her use of it. The appellee had not so determined it. Under this situation, the liability of Lancaster does not rest upon the doctrine of respondeat superior, nor upon an ancient rule of either the law of Louisiana or the common law making him liable for his wife's negligence, her tort.
National Liberty Ins. Co. of America v. Sturtevant-Jones Co., 156 N.E. 446, 52 A.L.R. 705; Maynard v. James, 109 Conn. 365, 146 A. 614, 65 A.L.R. 427; Gulf S.I.R. Co. v. Sutter Motor Co., 126 So. 458.
Most certainly the appellee was entitled to its peremptory instruction. The undisputed evidence showed that the appellee had fulfilled the duty imposed by law upon it. The undisputed evidence showed that the bailee, the appellee, is chargeable with the damage to the loaned car occasioned by the manifest failure of his wife, to whose use as well as his own he had applied the car, to exercise ordinary care in its operation and use.
Yet regardless of all of the circumstances of the wreck, and regardless of all of the law relating to the obligations of bailor and bailee, the appellee was entitled to its peremptory instruction because the appellant, as plaintiff, failed to prove the most material allegation of his declaration, failed to prove that the title to the subject-matter of the alleged conversion was in him at the time of the alleged conversion in March, 1937. For the reason that under the proof offered by both sides it is plain that from and after January 10, 1937, the date of the trade and delivery of the car of Lancaster to the Jordan Auto Company, the plaintiff no longer had any title or ownership therein, the court below properly instructed the jury to find for the defendant.
Argued orally by C.F. Engle, for appellant, and by Joseph E. Brown, for appellee.
The appellant, plaintiff in the court below, brought suit against the appellee for $500, for the conversion of an automobile which had been traded under an agreement of exchange, and as part of the purchase price of a new car of a type desired by the plaintiff.
It appears from the declaration that the plaintiff made an agreement with the Jordan Auto Company, defendant in the court below, for the purchase of a new car on which he was to be allowed a credit of $500 for a Chevrolet coach owned by the plaintiff at the time. This original trade was made in December, 1936, but the new car was not available for immediate delivery, and the plaintiff continued to use his old car until between the 10th and 20th of January, 1937, when it was turned over to the Jordan Auto Company on the latter agreeing to furnish the plaintiff, Lancaster, a car to be used pending the arrival of the new car. Plaintiff and his family used the car so loaned until about the 19th day of February, 1937, when, while being driven by the plaintiff's wife, there was an accident, wrecking the car, killing a child, who was a guest, and injuring members of the family.
After this wreck the Auto Company demanded payment for the wrecked car from the plaintiff, which the latter refused. Thereafter, about the first of March, 1937, or early in the month, the Jordan Automobile Company sold the plaintiff's car, which it had agreed to take as a $500 payment on the new car, and refused to carry out the original contract unless the plaintiff would pay for the loaned car, which defendant claimed was a total wreck, and which defendant claimed was worth $500. The plaintiff refused to make the payment demanded, contending that he was not liable for the car so wrecked, and the defendant Auto Company refusing to carry out or consummate the original contract, he brought this suit for the conversion of his car.
The defendant pleaded the general issue, and gave notice thereunder that on the trial of the case it would offer and prove that the Chevrolet coach alleged by the plaintiff to have been converted by the defendant was, by mutual agreement between them, transferred and delivered to the defendant in consideration of the allowance to the plaintiff of its value of $500 as a credit on the purchase price of a new car; and that the plaintiff, by said transfer completely parted with title to, and ownership of the said car formerly belonging to the plaintiff. The defendant averred that it would undertake to prove that it sold the automobile so transferred on or about the 9th day of March, 1937, that the plaintiff had no title in the same, and that the said sale by the defendant did not amount to a conversion, as alleged in the declaration. It further gave notice that even if the plaintiff retained a right or claim to the said automobile, nevertheless the plaintiff had no right at any time prior to the sale of the automobile by the defendant, to rescind the contract, and demand back the property, for the reason that by mutual agreement between plaintiff and defendant, for the convenience of the plaintiff the defendant had loaned him an automobile, which, while in the custody of the plaintiff, was damaged to an amount in excess of the credit of $500. And, further, that the damage to the car was occasioned through the carelessness and negligence of the plaintiff and those acting in his behalf, prior to the sale on March 9, 1937, of the automobile which plaintiff alleged to have been converted by the defendant; and this through no fault or negligence of the defendant, or through any circumstance over which it has any control. The defendant averred that its automobile, so loaned to the plaintiff, while in his possession was damaged in an amount in excess of the sum of $500, for which the plaintiff was to have received credit on purchase of a new car; and that the plaintiff at no time tendered back the car in the same condition as when it was loaned to him. Wherefore the defendant would undertake to prove that at the time of the alleged conversion of the automobile the plaintiff had no title or interest in the car.
The plaintiff gave counter-notice under the general issue, in reply to the notice of the defendant, alleging that the latter breached its contract to allow the plaintiff a credit of $500 on the Chevrolet coach received from him on a new car, refused to sell plaintiff a new car, and kept the coach, sold it, and put the money in its pocket, refusing to account to the plaintiff for any part of the money, or to allow a credit on a car, or to carry out its agreement with plaintiff in any respect. Plaintiff alleged that in its eagerness to sell him a car the defendant insisted on his delivering his Chevrolet coach to it, before it was ready to deliver the new car, and insisted upon placing with plaintiff, for his use, a second-hand car which it possessed, the only obligation in regard thereto on the part of the plaintiff was to use it with ordinary care; that the said car was defective, in that its brakes were not in proper condition, and it was run into by another car on the highway because of its defective condition, injuring plaintiff's wife and children, and causing him to be put to great expense for doctor's bill, and otherwise. That defendant's attitude in the matter is that it can retain the car which plaintiff turned over to it in a trade, sell it, and keep the money, refusing to carry out its contract.
On the trial of the case it developed that plaintiff was anxious to buy a new car, and turned in his old car for $500 as part payment on the new one. Owing to a strike and labor troubles at the factory the new car could not then be delivered, and the plaintiff temporarily continued to use his old car while awaiting delivery; but in January the defendant arranged with the plaintiff to take a second-hand car which it had on hand, to be used by him until the new car arrived, instead of his own car, which the defendant would put in good mechanical condition, in order to sell it upon the opportunity presenting itself. In other words, it desired to have the car on hand, to put it in condition to sell.
There was a dispute about the mechanical condition of the car loaned to the plaintiff pending arrival of the new car, and which was wrecked while being driven by plaintiff's wife. It appears that the plaintiff's wife, with her children and a neighbor's child, was driving along the highway behind a truck, going in the same direction, when another car approached, going in the opposite direction. The plaintiff's wife applied the brakes to the car, to check its speed, and owing to mechanical defects in the brake on one side they did not hold, while on the other side they did, throwing the car from its course, and out into the highway on its left side, where it was struck by the approaching car.
There is a dispute as to the extent of the damage to the car occasioned by this collision; the defendant's proof being to the effect that it was a total wreck, and valueless; while that for the plaintiff tended to show that it could be repaired, and put in good condition for $180, the amount for which a mechanic, introduced as a witness, testified that he would do the work.
It was shown in the evidence that the plaintiff refused to pay for the car so damaged, and that the defendant then refused to carry out its contract, and sold the plaintiff's car for which it had agreed to allow $500 on the purchase price of a new car when it could be obtained from the factory.
We do not think the wrecked car properly figures in this lawsuit, because that would present the allowance as an off-set of an unliquidated demand against the suit for the conversion of the car; and separate suits would be required in the two controversies. If the defendant's theory was accepted, that it had absolutely bought the plaintiff's car for $500, the demand for the wrecked car could not be off-set against such demand, under the laws of Mississippi, because it would be allowing a set-off for unliquidated damages, which cannot be done under our laws. The value of the wrecked car could not be used as a recoupment, because the liability for the wrecking of the car, if any, was not a part of the contract for the purchase of the new car, and the allowance of credit thereon.
When the defendant refused to carry out its contract and deliver the new car, allowing the $500 on the payment therefor, it breached its contract, and the plaintiff had a right to elect whether to sue for damages for breach of the contract, or to demand a return of the property; or, if it had been converted, to take the value of his car. The defendant's contract to allow $500 on the purchase price of a new car was not a contract to pay $500 for the car in money. It was to allow the plaintiff a credit in the transaction — not to pay money.
Under the statute the form of the declaration is not material, the common law having been modified in that regard. Under section 521, Code 1930, it is provided that the declaration shall contain a statement of the facts constituting cause of action in ordinary and concise language, without repetition; and if it contains sufficient matter or substance for the court to proceed upon the merits of the cause, it shall be sufficient, and there would be no objection to maintaining the action if the form thereof had been different.
By section 567, Code 1930, amendments are allowed to any pleading or proceeding at any time before verdict, so as to bring the merits of the controversy between the parties fairly to trial; and under section 568 a variance between the allegation in a pleading and the proof shall not be deemed material, unless it shall have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits, and where it shall not be shown to the satisfaction of the court that the party has been so misled, immediate amendment of the pleading may be made without costs, and without delaying the case; and if the party has actually been so misled, an amendment may be allowed on such terms as shall be just.
In the case at bar the declaration sets forth sufficiently the nature of the transaction to advise the defendant of its character. In the action for conversion the value of the property at the time of the conversion is the test, and not the value that was agreed upon by the parties as a credit on the new car — nor is the price received by the defendant the test. These matters may be pertinent in proving the value; but the question for decision was the value of the car at the time it was converted by the defendant.
In order to have a set-off the demands must be fixed and determinable by contract. They must, in other words, be liquidated or certain. Sections 537 and 538, Code 1930, determine what may be set off in a suit; but the suit must arise by contract, and the amount should be certain. Neither can the defendant recoup, in this suit, for the value of its car which was damaged or destroyed, because to sustain a recoupment, while the amount may be unliquidated, it must spring from the same transaction, and not from a separate one. See Hayes v. Slidell Liquor Co., 99 Miss. 583, 55 So. 356; and Hoover Commercial Co. v. Humphrey, 107 Miss. 810, 66 So. 214.
The court below, at the conclusion of the evidence, granted a peremptory instruction for the defendant, which, under any view of the case, was improper on the record in this case. We do not deem it necessary to go into a discussion of the principles of liability, or law controlling liability, pertaining to the wrecked car; but the damages, if any, due the defendant by the plaintiff in that transaction, must be sought in a separate suit. This suit having been brought in Mississippi, where the defendant is domiciled, all matters of procedure are controlled by the laws of this state, and it is clear that the two suits cannot properly be tried as one in this state; and that the defendant cannot either set-off or recoup against the plaintiff's demand for the value of his car, or the defendant's demand for the damage to the wrecked car.
If the plaintiff is insolvent, there is an appropriate remedy either by stay of execution in the circuit court, or by injunction in the chancery court, to stay proceedings under a judgment obtained in the present suit, until the suit for the injury or damage to the wrecked car can be determined. If the plaintiff is solvent, as claimed, of course he is responsible, should liability exist, and no legal injury would result to the defendant in this suit from the rendition of the judgment in the present suit.
The judgment of the court below is reversed, and the cause remanded.
Reversed and remanded.