court sustained to the declaration, but on appeal to this court it was held that the declaration stated a good cause of action. In that case Rich was the owner of the land and the seller of the timber, occupying a position similar to that occupied by McIntyre in this case. The demurrer challenged the validity of the contract in that case, as it does in this. The material terms of that contract are similar to the ones in this contract. The decision in that case is therefore controlling in this. Other decisions in point are Davis v. Bellows, 99 Miss. 838, 56 So. 174; Coat Lumber Co. v. Pope, 43 So. 434. The bill alleges that after the Berrymans had moved the mill upon the lands of McIntyre, and had begun to cut the timber and comply with this contract, with the full knowledge, acquiescence, and consent of McIntyre, they sold the mill to complainant, Adams, and assigned to him their rights and liabilities under this contract, to all of which McIntyre agreed. By consenting and agreeing to this, McIntyre is now estopped to claim that the contract was not assignable. It is therefore unnecessary for us to decide whether or not ordinarily the contract could be assigned, and the relative rights and liabilities of the parties under the assigned contract. By the filing of the bill in this case, the complainant, Adams, offers to perform the contract of the Berrymans assigned to him. The filing of the bill is a compliance with the statute of frauds. Peevey v. Haughton, 72 Miss. 918, 17 So. 378, 18 So. 357, 48 Am. St. Rep. 592. Affirmed and remanded, leave being given the defendants in the lower court to answer the bill within ninety days after the mandate of this court is filed in the chancery court. Affirmed and remanded. Syllabus. [122 Miss. BUCKEYE COTTON OIL Co. v. OWEN. [In Banc. No. 20971.] 1. TRIAL. Quotient verdict irregular if result of agreement. A verdict arrived at by adding together the amounts the several jurors thought should be awarded to the plaintiff and dividing the sum thus obtained by twelve, pursuant to a previous agreement by the jurors so to do, is irregular and will be set aside. 2. TRIAL. To render quotient verdict error, previous agreement is necessary. A quotient verdict will not be set aside unless it affirmatively appears from the evidence that the jurors agreed in advance to return such a verdict. APPEAL from circuit court of Layfayette county. Action by Will Owen against the Buckeye Cotton Oil Company. From a judgment for plaintiff, defendant appeals. Basil L. Mayes and S. L. Gwin, for appellant. Gardner, McBee & Gardner, for appellee. SMITH, C. J., delivered the opinion of the court. This is an appeal from a judgment awarding the appellee damages alleged to have been sustained by him because of the negligence of the appellant. There is no reversible error, if error at all, in any of the matters complained of, only one of which will be here specifically noticed, and that is that the jury returned a quotient verdict. This question was raised in the court below on the motion for a new trial, and it appears from the evidence introduced in support thereof, as set forth in the opinion rendered by the trial judge: 122 Miss.] 66 Opinion of the court. "That within a minute or two after the jury had retired the jury sent word to the judge not to be in a hurry, that they would be out presently, and at the same time called for some paper which was carried to them by the deputy sheriff; and that within about fifteen minutes the jury returned a verdict for the plaintiff for one thousand dollars. The next morning early, one of the attorneys for defendant found in the jury room twelve ballots on which were written different amounts from three hundred to two thousand dollars, and a sheet of paper with a column of figures corresponding in amounts exactly to the amounts on the ballots; and this column of figures had been added on that sheet of paper and the sum divided by twelve, leaving a quotient of nine hundred seventy dollars." All of the figures on the sheet of paper which contained the column of figures corresponding to those on the ballots were in the handwriting of one of the jurors. The trial judge was of the opinion, in which we concur, that these calculations were made by the jury. A verdict arrived at by adding together the amounts the several jurors thought should be awarded to the plaintiff and dividing the sum thus obtained by twelve, pursuant to a previous agreement by the jurors so to do, is irregular and will be set aside. Parham v. Harney, 6 Smedes & M. 55. "But where there is no previous agreement to be bound by such quotient verdict, simply adopting that method and agreeing in the result so obtained is not enough to make the verdict bad; and all the more is this true where the result so obtained is not in fact adopted as the verdict. The impropriety of this practice consists, not in the method nor the sum of the result, but in the prior agreement to be bound by it." 20 R. C. L. 244; 29 Cyc. 812; 39 Cyc. 1844. The ground of objection to a verdict rendered pursuant to such an agreement is that "The agreement cuts off all deliberation on the part of the jurors, and places it in the power of a single juror to make the quotient unreasonably large or small, by naming a sum extravagantly high or ridiculously low. It is not material on what particular scheme of averages this 'quotient verdict' is devised; the vitiating fact is the agreement in advance to abide by the result." Leaving out of view the discrepancy of thirty dollars between the amount awarded the appellant and the quotient obtained by dividing by twelve the aggregate of the amounts on the ballots, the verdict here in question cannot be disturbed for the reason that it does not appear from the evidence that the jurors agreed in advance to to return the quotient thus obtained as their verdict. For aught that appears to the contrary, the quotient method may have been adopted by the jury merely as an experiment, resulting in each juror afterward becoming convinced that the amount thereby arrived at was that to which the plaintiff was justly entitled. Affirmed. PERJURY. JOHNSON V. STATE. [In Banc. No. 21083.] Sufficiency of proof of falsity of oath stated. Before an accused can be convicted under an indictment for perjury, the fact that the oath was false must be proved by two witnesses, or by one witness and corroborating circum. stances. APPEAL from circuit court of Alcorn county. HON. C. P. LONG, Judge. Elmer Johnson was convicted of perjury, and he appeals. N. T. Currie, attorney-general, for the state. STEVENS, J., delivered the opinion of the court. Appellant was indicted and convicted of the crime of perjury, and from the judgment of the court sentencing him to two years in the state penitentiary this appeal is prosecuted. The record shows that, some time prior to the indictment an affidavit was lodged in the mayor's court of the city of Corinth, charging appellant with being a vagrant under section 5055, subsec. (c), Code of 1906; section 3332, Hemingway's Code. Immediately upon arrest of the accused under said affidavit, he was tried by the mayor, and during the progress of the trial the defendant testified in his own hehalf. At the conclusion of the trial by the mayor the defendant was promptly convicted and placed under bond on a charge of perjury. Thereafter appellant was indicted in the circuit court on the said charge of perjury, the material charge of the indictment being that appellant as a witness before T. E. Henry, mayor of Corinth, in testifying in his own behalf on the said charge of vagrancy, falsely, feloniously, and willfully swore and gave evidence: "That he the said Elmer Johnson within the three weeks prior thereto had worked twelve days at manual labor for the Churchill Compress Company, whereas in truth and in fact during the three weeks prior to said day he, the said Elmer Johnson, had not worked twelve days for the said Churchill Compress Company, and had not worked more than two days for the said Churchill Compress Company, or for any other person or corporation, but had been guilty of vagrancy during said time," etc. 122 Miss.-2 |