Opinion
No. 39434.
January 24, 1955.
1. Contracts — evidence — claims properly denied.
In suit by plaintiff against his brother to recover amount allegedly due as result of business transactions between parties, evidence sustained Chancellor's findings that claims were without merit.
Headnote as approved by Roberds, P.J.
APPEAL from the chancery court of Amite County; JAMES A. TORREY, Special Chancellor.
McClaren Dixon, McComb, for appellant.
I. The Court erred in holding that the various claims alleged by both the parties were barred by the statute of limitations, and that the complainant and defendant were not merchants or traders within the meaning of Section 730 of the Mississippi Code of 1942, Annotated. Campbell v. City of Anthony, 40 Kan. 652, 20 P. 492; Freidman v. Edgewater State Bank, 215 Ill. App.? 36; Merchants' Farmers' Bank v. Schaaf, 108 Miss. 121, 66 So. 402; Richie v. McCauley, 4 Pa. 472; Stephenson v. Louisiana Oil Rfg. Co., 180 Miss. 410, 177 So. 912; Sec. 730, Code 1942; 34 Am. Jur., Secs. 97-8, 159; Annos. 1 A.L.R. 1060-S, 39 A.L.R. 369, 57 A.L.R. 201; 42 Words and Phrases 198; Black's Law Dictionary, word "trader."
II. The Court erred in holding certain claims of both parties barred by the statute of limitations where it was evident that the parties had agreed upon a time when their respective actions would accrue; and further, where it was evident that the statute of limitations, as a defense, had been waived. Anderson v. Lancaster, 215 Miss. 179, 64 So.2d 595; Izard v. Mikell, 173 Miss. 770, 163 So. 498; Secs. 724, 729, Code 1942; 53 C.J.S., Sec. 25 p. 962.
III. The Court erred in the admission of parol evidence to affect a written instrument. 32 C.J.S., Sec. 851 p. 784.
Gordon Gordon, Liberty, for appellee.
I. Answer to appellant's Proposition I. Merchants' Farmers' Bank v. Schaaf, 108 Miss. 121, 66 So. 402; M.G. Travis Co. v. Mosley, 148 Miss. 368, 114 So. 628; Walley Son v. L.N. Dantzler Lumber Co., 114 Miss. 601, 75 So. 433; Sec. 730, Code 1942; 87 C.J.S. 757; Black's Law Dictionary (4th ed.), word "trader."
II. Answer to appellant's Proposition II. Stephenson v. Louisiana Oil Rfg. Co., 180 Miss. 410, 177 So. 912; Secs. 724, 748, Code 1942.
III. Answer to appellant's Proposition III. 32 C.J.S., Sec. 851 p. 784.
Appellant and appellee are twin brothers. Appellant filed the bill herein alleging that he and appellee had had a number of business transactions, detailing them, and that appellee owed him a large sum of money growing out of these transactions. Appellee answered that he did not owe appellant anything whatsoever, but, on the contrary, appellant owed him a considerable sum of money as a result of such transactions, and, by way of cross bill, asked for a personal decree against appellant for the just amount owing to him by appellant. Appellant, in answer to the cross bill, denied he owed appellee anything, except $178.40 hereinafter mentioned.
A great deal of testimony was taken upon the issues of fact. After hearing all of this testimony the chancellor, in a clear, concise opinion, found that there was no merit in any of the claims of either party as against the other except that he found that appellant owed to appellee the sum of $178.40, which appellant admitted appellee was compelled to pay under a bond he signed as surety for appellant.
From that decree appellant appeals. Appellee did not cross appeal.
(Hn 1) The merits of the respective claims depended upon the facts. The chancellor deduced the facts from conflicting testimony. We deem it unnecessary to discuss the evidence and conclusions pertaining to the many transactions here involved. It is sufficient to say, as to all of them, that we think the great weight of the testimony supports the conclusions reached by the learned chancellor.
Appellant says that he and appellee were traders and that mutual, open accounts existed between them, and that the statute of limitations had not run against any of the claims as was stated in the final decree herein. Sec. 730, Miss. Code 1942. While we are of opinion the parties hereto were not traders and that the dealings between them were not of the nature of mutual open accounts, and that, therefore, they are not within said section, we deem it unnecessary to decide the questions because the opinion of the chancellor passed only upon the merits of the claims, finding they had no merit, without invoking the statute of limitations. It is true that the final decree, entered pursuant to the opinion, in addition to deciding the claims upon their merits, also said some of them were barred by the statute of limitations, but the finding that the claims were barred was entirely unnecessary, the decree having rightfully adjudicated the claims were without merit.
Affirmed.
Hall, Lee, Kyle and Holmes, JJ., concur.