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evidence.” Without the filling in of this, rendered, plaintiff appeals. Reversed in part blank, in a suit based upon this contract, the and affirmed in part. appellant would have been called upon to

P, Z. Jones, of Brookhaven, for appellant. prove the correctness of the account owing at

Magee, Gibson & Magee, of Monticello, for the time of the execution of the contract. But

appellee. with this amount inserted this rule of evidence is changed, and this amount is agreed

ETHRIDGE, J. The appellants sued the to as being correct in the contract. This court has committed itself to the rule the statutory penalty for the cutting of 45

appellee in trespass in two counts: One for that an alteration which enlarges the scope pine trees and 5 oak trees from the lands of of an instrument as a means of evidence is the appellants; and the second count for the material. Bank of Lauderdale v. Cole, 111 actual value of the timber cut, alleging the Miss. 39, 71 South 260. The authorities cited in the opinion in the Cole Case have

value to be $900. The defendant appellee been carefully examined by us, and they sus. There was no pleading of tender and amends,

pleaded the general issue upon each count. tain this doctrine.

but at the beginning of the trial before the Since this agreement or contract was materially altered, and the liability of these jury the defendant's counsel made the fol

lowing statement : sureties is to be measured by this contract, it follows that the material alteration of it

"We want to tender $24.50 to the plaintiff to vitiates it, and the sureties are not liable cover 12,250 feet of timber, the amount claimthereon.

ed by the defendant to have been cut by him, The judgment of the lower court is af- and plaintiff declines to accept the tender.” firmed.

[1] All of the evidence before the jury is Affirmed.

not contained in the record. The stenographer certifying that a certain portion thereof had been lost by reason of his losing

his notes of the evidence, one of his note LOUIS COHN & BROS. V. LOVELL. LUM- books used for taking the evidence being BER CO. (No. 23881.)

lost, and there is no effort or bill of excep(Supreme Court of Mississippi, Division B. tions taken to show what the missing eviMay 26, 1924.)

dence is. At the close of the evidence the

defendant moved the court to require the (Syllabus by the Court.)

plaintiffs to elect upon which count they 1. Appeal and error 1039(9)—Wrongfully would proceed, which motion the court sus

requiring election by plaintiff between two counts not disturbed in absence of showing tained, and the plaintiffs elected to stand enabling determination whether error harm- upon the count for actual value. The apful.

pellants assign this requirement for election Where a plaintiff brought a suit for tres- to be error, and also assign for error that pass in two counts for cutting timber growing the court taxed the plaintiffs with half of on his land, one for the statutory penalty and the costs. the other for actual value, and the court wrong- [2] In Batson-McGehee Co. v. Smith, 98 fully required him to elect between the counts, South. 534, we held that the plaintiff was not this court cannot, unless the evidence is pre required to elect between the two counts, served in the record, or a bill of exceptions taken, or an agreement of facts made, deter- but was entitled to go to the jury and have mine whether such action of the court was the jury determine from their finding of the prejudicial or not, and cannot reverse unless it evidence upon which count the plaintiff was appears that the error was harmful.

entitled to recover, pointing out that ques2. Costs m42(1)-Requisites of tender to au- tions in these cases frequently turn on the

thorize taxation of cost against plaintiff on determining of the jury of the facts as to recovery of judgment, stated.

whether the trespass was willful or not. In a suit for trespass for cutting timber on The plaintiff cannot recover both, but is enthe land of plaintiff, where defendant after titled to go to the jury and have the jury suit brought tenders or offers to pay a named determine whether the trespass was willful amount as damages, the tender must include or not under proper instructions of the court. cost to date of tender to authorize the court The appellee says that the appellants are to tax plaintiff with the cost or a part of it not prejudiced by this ruling because the eviwhere he recovers a judgment, even though the judgment is not for more than the amount ten- dence in no event warranted the jury in finddered. Collier v. White, 67 Miss. 133, 6 South. ing a willful trespass. The record not hav618, cited.

ing all of the evidence, we are unable to see

whether the facts warranted the court in Appeal from Circuit Court, Lawrence submitting to the jury the law in regard to County; J. V. Langston, Judge.

the statutory penalty, and we must presume Suit by Louis Cohn & Bros. against the where the evidence is not in the record that Lovell Lumber Company. From judgment | it supports the verdict, and cannot reverse

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(100 So.) for this error, because it is not apparent, and the judgment reversed as to ove and afirma that it was harmful to the appellants. We ed as to another, the principal in the bond as to do not think, however, the court below was whom the case is reversed is not liable on the warranted in taxing the appellants with half bond, but the sureties are liable where a supthe costs. The plaintiff is generally entitled ersedeas effected by the appeal bond under to full costs where he is successful, and the Code of 1906, § 58 (Hemingway's Code, 34). tender, if it may be called such, was insuffi

Appeal from Circuit Court, Coahoma Councient to preclude appellants' rights because

ty; W. A. Alcorn, Judge.
the costs were not tendered. Collier
White, 67 Miss. 133, 6 South. 618.

Suit by P. L. Cobb and another against R. The judgment will be reversed as to costs M. Wise and W. B. Wise, as partners. Judgbut affirmed in other respects.

ment for plaintiffs, and defendants appeal. Reversed in part; affirmed in part.

Affirmed in part and reversed in part.

Griffing, Griffing & Taylor, of Clarksdale, for appellants.

Maynard, FitzGerald Venable, of

Clarksdale, for appellees.
WISE et al. v. COBB et al. (No. 23952.)
(Supreme Court of Mississippi, Division B.

ETHRIDGE, J. The appellees, Cobb and
May 26, 1924.)

Fitzgerald, sued R. M. Wise and W. B. Wise, (Syllabus by the Court.)

as partners, alleging the assignment of cer1. Partnership am 216(1)-Defendant sued as

tain accounts by the Wise brothers to the partner by denial of existence of partnership plaintiffs and the guaranty that said acunder oath imposes necessity on plaintiff to counts were true and correct, and averring prove partnership.

that certain items were untrue ard in corIn a suit against two persons as partners, rect. The instrument relied on as a guaranwhere one of the defendants denies the partner- ty reads as follows: ship under oath, the plaintiff must prove the existence of the partnership at the time of the assign to Cobb and Fitzgerald, Jonestown, Mis

“For value received, I hereby transfer and transaction relied upon by him, and unless he so prove it the judgment should be for the de- sissippi, the above listed accounts showing the fendant.

amounts due on this date opposite name of

debtor and I guarantee the said accounts, to be 2. Partnership ww285–Guaranty by one part. true and correct. Clarksdale, Mississippi, June ner on selling, after dissolution, accounts of 29th, 1917. firm held not binding on another partner. "[Signed]

W. B. Wise." Where a person sells certain accounts for

There was a denial of the partnership unmerly belonging to a partnership and signs a written guaranty in his own name guaranteeing

der oath by R. M. Wise. There was also an the correctness of the accounts, it is the per affidavit denying the indebtedness to the sonal contract of such guarantor, and will not plaintiffs and denying the correctness of the bind a former partner who is not a party to account sued upon; also a plea of the genthe contract.

eral issue and a plea of the statute of limi3. Appeal and error ww1173(1)-Partnership

tation, and a plea of the statute of frauds. Em 165, 219(3)-Obligations of partners joint

It appears that R. M. Wise and W. B. and several; judgment may be rendered Wise were formerly partners, and were enagainst one partner in suit against both; judg- gaged in business as such at Jonestown, ment against all partners when evidence au- Miss., and that they first sold to Cobb and thorizes judgment against only one reversed Fitzgerald their lands, stock of goods, and In part and affirmed in part.

storehouse in the month of December, 1916. The obligations of partners arising from At the time of this purchase the plaintiffs, the partnership business is joint and Cobb and Fitzgerald, would not buy the eral; and, where a suit is filed against two or book accounts and other partnership securimore persons as partners, and the proof es ties. There was no proof that a partnership tablishes the obligation only against one of existed between R. M. Wise and W. B. Wise them, judgment may be rendered against that one; and in case a verdict is rendered against on June 29, 1917, at which date the above il members of a partnership, and a judgment assignment was executed by W. B. Wise. is rendered thereon, but the evidence only au

There is proof in the record by R. M. Wise thorizes the verdict and judgment against one, that the partnership was dissolved after the the Supreme Court will on appeal reverse as sale of the storehouse and goods to the to those who are not liable and affirm as to plaintiffs and that in January, 1917, for a those who are liable on the obligation.

nominal consideration R. M. Wise sold to W. 4, Appeal and error ww1232-Rule as to liabil B. Wise his interest in said accounts. There ity on supersedeas bond on affirmance as to was other proof tending to show that W. B. one and reversal'as to other principal stated. Wise conducted some kind of business and

Where a judgment is rendered against two that goods were sold to him as an individu. of more persons, from which an appeal is taken, al. There was some proof in the record that

w for other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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one of the members of the plaintiffs' firm, tract or agreement attached to the declarahad some conversation with R. M. Wise in tion set out above. Defendant also requestreference to the accounts but no statemented and was refused a charge that in this as to a partnership existing at the time, nor case the written agreement is upon its face was any contract made with R. M. Wise. conclusively the contract and agreement of The entire dealings were between W. B. W. B. Wise, and is in no wise the contract Wise and Cobb & Fitzgerald in so far as the and agreement of Wise Bros., composed of assignments and notes were concerned. W. R. M. Wise and W. B. Wise, and, unless B. Wise did not testify as a witness in the from the evidence in this case the plaintiffs case.

have established by a clear preponderance of At the conclusion of the evidence the de- the evidence that such written agreement fendant R. M, Wise, moved the court to ex was not the agreement and contract of W. clude the evidence and to grant a perempto- B. Wise, but was the contract of the partry instruction as to R. M. Wise because the nership of W. B. Wise and R. M. Wise, then evidence does not show or connect R. M. it is the duty of the jury to find for the deWise with the subject-matter of the lawsuit, fendants. nor that he is in any manner liable to the There was a judgment and verdict against plaintiff's; and, second, that the suit was appellants, from which they appealed jointbrought against R. M, Wise and W. B. Wise ly, and signed the bond reciting "R. M. Wise as a suit on a joint obligation, and the evi- and W. B. Wise, principals, and S. H. Frieddence shows it is not an obligation of both man and Sam J. Avery, sureties." This partners, but the several obligations of w. bond is a supersedeas bond. B. Wise, and that there is no written evi. [1] The partnership having been denied dence of liability or promise of R. M. Wise under oath, it was incompetent upon the or any promise on the part of either defend- plaintiffs to prove the existence of the partant as to the $303.15 item, and that it comes nership at the date of the contract for the within the statute of frauds; third, that all purchase of the accounts and notes, and, of the items sued for are shown to be on ap failing so to do, they are not entitled to reoral contract or account, and that the stat- cover of R. M. Wise. utes of limitation have run against all of [2] It further appears that R. M. Wise did such items; fourth, that it is shown that not sign the written guaranty, and is not there is no partnership in existence at the bound thereby, the guaranty being the inditime of making the agreement sued on, or vidual undertaking of W. B. Wise, and not any of them, and therefore no partnership the undertaking of W. B. Wise and R. M. agreement shown, and if there is any liabil- Wise as partners. ity it would be against W. B. Wise, and not [3] The appellants insist that the plainthe defendants jointly.

tiffs are not entitled to recover against W. The court granted the plaintiffs a charge B. Wise, for the reason that the suit is deto the jury that they should find against W. clared on a joint liability, and not a joint B. Wise in th sum of $385,86, as he signed and several liability, and rely upon the case the agreement of guaranty, and the amount of Kimbrough v. Ragsdale, 69 Miss. 674, 13 of the contract is undisputed, and, further, South. 830, in which case the court anthat they should find for the plaintiff nounced the doctrine that under our joint against R. M. Wise if they believe that in and several debtor statute the statute did signing the guaranty W. B. Wise was acting not intend to permit a plaintiff to declare both for himself and R, M. Wise, and fur- upon a joint contract and recover upon a ther instructed the jury that, if they believe several one. In that case the parties defrom a preponderance of the evidence that fendant in the suit were not partners, but there had been such a firm as Wise Bros., one of them was the owner of the building composed of R. M. Wise and W. B. Wise, and the other was a contractor who erected and W. B. Wise had been acting as the agent the building under contract, and the materi. for this firm in the transaction of its busi- almen sued both jointly for the purchase ness, and that plaintiff's knew this, and that price of certain material. This case, howat the time of the purchase of the accounts ever, is not applicable to the suit before us, plaintiffs relied on this practice, and be because the declaration declares against the lieved that W. B. Wise was so acting, and defendants as partners, alleging that the believed that he was dealing with the firm of subject-matter of the suit was a partnership Wise Bros., and had received no notice that liability. The liability of partners is joint this firm was dissolved, then R. M. Wise is and several, and not a joint liability. Din. estopped to deny that he is not liable on the widdie v. Glass, 111 Miss. 449, 71 South. guaranty, and is estopped to deny that w.) 745; Hattiesburg Hardware Co. v. Pittsburg B. Wise was his agent in the transaction. Steel Co., 115 Miss. 663, 76 South. 570; Fair

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The court below refused the defendants an child v. Grand Gulf Bank, 5 How. 597. instruction that under the facts and circum- Therefore the plaintiffs in the present suit stances of the case oral testimony is not ad- were permitted to declare against the partmissible and is not to be considered to vary nership and recover against the one who 18 or contradict the terms of the written con- liable under the proof. The plaintiff's could

116 x 8

(Bello

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(100 So.) bare dismissed as to R. M. Wise at any stage , recital to the contrary in the decree by clear of the proceedings before verdict and pro- and convincing evidence is on the party atceeded against W. B. Wise upon his guar- tacking the decree. anty. Therefore W. B. Wise is liable, the 2. Equity Cm 123—Order for publication of jury having found that certain of the ac process for nonresident defendants not invalid counts guaranteed were not true and cor because not in handwriting or signed by clerk. rect.

An order for the publication of process for [4] It is insisted that the judgment must nonresident defendants to a suit in chancery be affirmed at all events because the appel- made by the clerk of the court pursuant to arlants executed a joint appeal supersedeas | ticles 34, 36, c. 62, Code 1857, is not invalid bond, and that both the appellants and the because it is not in the handwriting nor signed sureties were liable thereon for the amount the court in term time.

by the clerk and not afterwards approved by of the judgment against W. B. Wise, and that it can make no difference whether R. 3. Infants Om Ill-When suit to annul decree M. Wise was liable or not originally because

against minor defendants must be brought

stated. he is now liable if the judgment against W. B. Wise is valid under section 58, Code of fendants must be brought not later than two

A suit to annul a decree against minor de1906 (Hemingway's Code, $ 34), which reads

years after the minors have obtained their maas follows:

jority, unless they are without knowledge of the “Appeal bonds shall be sufficient if signed rendition of the decree, or of such facts as by one or more of several appellants, with sure would reasonably put them on inquiry and lead ties as required by law, and, in case of the af- to a discovery thereof. formance of the decree or judgment complained 4. Infants mill-Principle of concealed fraud of, the judgment of affirmance shall be entered

held not applicable to things openly done or against all the appellants in the same manner which appear of record. as if all had signed such bond. But if the de

The principle of concealed fraud has no ap-
cree or judgment be affirmed as to some and
rerersed as to others of said appellants, the plication to things that were openly done or

which appear of record.
judgment of affirmance shall be entered only
against those as to whom it is affirmed, and

Appeal from Chancery Court, Tallahatchie the sureties on the appeal bond."

County; G. E. Williams, Chancellor, And under the case of Terry v. Curd, 66 Suit by C. I. Belt and others against JoMiss. 394, 6 South, 229, holding the sureties seph C. Adams. From a judgment for plain. liable in case the judgment be affirmed as to tiffs, defendant appeals. Reversed and bill other parties. This is true of the sureties dismissed. upon the bond, but it is not true of the ap

Julian C. Wilson, of Memphis, Tenn., and pellant R. M. Wise, who signed the bond as Wells, Stevens & Jones, of Jackson, for apa principal, and not as a surety. Not having

pellant. signed as surety, he is not liable as surety,

Cutrer & Smith, of Clarksdale, Woods & and is entitled to have the judgment re. Kuykendall, of Charleston, and Evans & versed as to him, with his cost.

Evans, of Sandersville, Ga., for appellees. The judgment will therefore be affirmed as to W. B. Wise and reversed and dismissed

SMITH, C. J. The case made by the recas to R. M. Wise under authority of Bank of ord is this: In February, 1916, L. Carlton Philadelphia v. Posey, 130 Miss. 530, 825, 92 Belt, a citizen and resident of Bullock counSouth. 840: Id., 130 Miss. 825, 95 South. 134. ty, Ga., died seized and possessed of certain Affirmed in part; reversed in part. land in Tallahatchie county, Miss., leaving

as his heirs at law his widow, Elizabeth T. Belt, and three children, Willie B. Belt; Lloyd J. Belt, and Talbot C. Belt, minors.

The land was purchased by Belt from W. A. ADAMS V. BELT et al. (No. 23715.) Jenkins, and there remained a balance due (Supreme Court of Mississippi, Division A.

by Belt to Jenkins for the purchase money Feb. 4, 1924. Suggestion of Error

thereof at Belt's death. In September, 1869, Overruled June 2, 1924.)

Jenkins being then dead, his administratrix,

Margaret Jenkins, exhibited a bill in the (Syllabus by the Court.)

court below to which the widow and chil. I. Equity 430(3)-Burden on party attack-dren of Belt were made parties defendant, ing decree to show failure of service of notice setting forth the amount due by Belt on the by publication on nonresident defendants.

purchase price of the land. Belt left a last In a guit to set aside a decree against non. I will and testament in which his wife, Elizresident defendants reciting that the defendants bad been cited to appear by publication made abeth T. Belt, is designated as executrix, but according to law, on the ground that no legal which had not been probated in Mississippi, publication for the defendants had in fact been and praying for a sale of the land for the made, the burden of proving the falsity of the payment of the balance due on the purchase

em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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money thereof. This bill alleged that the de- fect in the proceeding by which the Jenkins' fendants therein were "citizens of the state vendor's lien was foreclosed or of any claim of Georgia, residing at Augusta, said state." of the appellees thereto. The appellant has

On this bill a decree pro confesso appar- been in actual possession of the land since ently against all the defendants was taken, he purchased it, residing on it most of the reciting that:

time, "It appearing to the court that the defendants

In November, 1917, an original bill of comin the above suit are nonresidents and that plaint was exhibited by Lloyd J. Belt and they have been cited to appear at the present C. 1. Belt, residents and citizens of the term of this court, by publication, made accord- state of Georgia against Adams, the appeling to law, and the order of publication sent by lant, alleging in substance what has hereinmail to their place of residence in the state of before been set forth, and in addition thereGeorgia, as required by law,” etc.

to charging: That L. Carlton Belt left a On final hearing this decree was dealt will by which he among other devises and with as if it were against Mrs. Belt alone. bequests devised the land here in controver

A motion was made for the appointment sy to his widow, Elizabeth T. Belt, who was of D. M. White, clerk of the court, as guard- also named as executrix in the will, for life, ian'ad litem of Willie B., Lloyd J., and Tal- with remainder at her death to his “then bot O. Belt, who were then minors, and while surviving children and the children, if any, the record discloses no appointment of the of such as may have died before her," which clerk as such' guardian he filed an answer will was probated at Belt's residence in Bul. and thereafter acted in the cause as such lock county, Ga., but not in Mississippi. guardian. In December, 1870, the cause was That no process was served on or publicaheard on the bill, decree pro confesso as to tion made for the defendants in the proceed., Mrs. Elizabeth T. Belt, the answer of the ing by which the land was sold under the guardian ad litem of the minor defendants, Jenkins' vendor's lien. That Mrs. Elizabeth exhibits, and the report of the master to T. Belt died on February 7, 1917. That Wil. whom the matter had been referred for the lie B. Belt died prior thereto leaving no statement of the account sued on, and a de- child or children. That Talbot C. Belt died cree was rendered adjudging the amount due prior thereto leaving as his sole and only thereon to be $4,275.60 and appointing the heir his son, C. I. Belt. That the balance clerk of the court as a commissioner to sell due Jenkins by L. Carlton Belt on the purthe land unless the balance decreed to be chase money of the land was paid by Elizdue thereon should be paid within 30 days, abeth T. Belt in February, 1871, after a and to apply the proceeds to the payment of decree for the sale of the land had been renthe debt sued on and the costs of suit, and dered, but before the sale had been made. the remainder, if any, to Elizabeth T. Belt. The prayer of the bill is that the decrees unA report of the sale under this decree was der which the land was sold be set aside and made in the name of "D. M. White, Clerk the deeds under which Adams claims title and Master, by G. A. Nicholetts, D. C. & thereto be canceled, and that the appelM.," setting forth the sale of the land to lees be decreed to be the owners of the land, Elizabeth T. Belt for the sum of $225, on and for an accounting by Adams for the which a decree was rendered confirming the rents and profits thereof. sale reciting:

A supplemental bill set forth, among other “And it further appearing to the satisfac- things, that since the filing of the original tion of this court that D. M. White, former bill Lloyd J. Belt has died intestate leaving clerk of this court and the commissioner by as his heir at law his widow, Susan W. Belt, whom said report of sale has heretofore been and praying that she be made a party comdeposited in this court has been removed from plainant in the cause. the clerkship of this court, it is therefore or- A demurrer interposed to this bill was susdered, adjudged and decreed that G. A. Nichol- tained but on appeal to this court the deetts, the clerk of this court be appointed the

cree was reversed and the cause remanded, commissioner of this court to convey by deed said lands to said purchaser, Elizabeth T. Belt.” as will appear from 124 Miss. 191, 86 South.

584, and 125 Miss, 387, 87 South. 666, whereNicholetts executed a deed to Mrs. Belt in the allegations of the bill are set forth pursuant to this decree, and the land was more in detail than they have been herein. thereafter sold under a mortgage executed On the return of the case to the court beby Mrs. Belt to Eve and purchased by Eve. low Adams answered the bill, and the cause In 1901, 1903 and 1904 Joseph C. Adams, the was heard on bill, answer, and proof result. appellant in the case at bar, became the own- ing in a decree in accordance with the prayer of the land by direct and mesne convey. er of the bill, from which Adams has apances from Eve. He purchased the land aft- pealed. er being advised by a competent and repu- The will of L. Carlton Belt was not protable attorney, who made an abstract of the bated in Mississippi until after the death of title thereof for him, that the title thereto Elizabeth Belt in 1917. was good, and without any notice of any de- [1-3] The grounds on which it is sought to

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