The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1866-08-30
DGClNONS on THE nlGH COURT
ERRORS AND APPEALS.
lmEr Irsucr HANDY prLlvEREp rm
40 mn ArRn TERM. -

] OPINION OF rHE COURT
b This was u btll nlc, hy thu appellant i
the Special Court ut Equity at jackson to
the specific performance of contract mad
by the appellee Cor the sale and delivery q
+ niue bales at cotton
G Tho contract is in writing and in the FOL
I lowing wopls
Camden. Miss, Oct. 10th, 1863 Reed o
A. N Mckay, nine hundred dollars being
i pay In full TOT nine bales of cotton weigh
/. ing tive hundred pounds per bale, t.doO lbs
, IN all which have this day sold said Mckal
at 30e per pound said cotton agree to dc
liver &C Canton, in good order when require,
60 do So but il is understood that ! am mol
to be held responsible for unaNoidabl,
accidents
Cotton located fifteen miles north 81
Canton J. h HAMBLEN,
II appearing, by the plcadings and proof
That tins contract was executed 1t Camden
n village in the northern part of Madison
county, and that al the time Of sale the cot
ton was ginncd aud haled aud WAS located ou
q plantation called the Lloyd Place. which
fact was known to tho appellant aud that
the appellee did notresidu ON that place, but
resided nj the time two aud a-halt miles from
the Lloyd place, which was then occupied
by another persuni that the cotton was in
the clubhouse on the Lloyd place. two or
three hundred yards from the dwelling house
and about the time of the surrender OF the
Confederate forces that il was stolen rs
SOME lawless persons, then common in the
region OF country, and was lost. II further
! appears that the appellant had several agents
IN the neighbofhond for the purchase ot cot
ton; that one of these. Maxwell, called on
| the appellee for the delivery of the cotton
after thesutrendcr and he replied that he
had secured four bales, hy hauling il 60 his
house from the Lloyd place, and that he WAS
willing to drliyerthis, provided the contract
would loo delivered up--thnt Maxwell sup
posed from the conversation, that these four
bales were part of the cotton sold 10 the APP
peIlant, BUTT appears that these tour bales
belonged TO the appcllee's sister, who resi-
died. at the Lloyd place, and was removed
thence by the appellee having sent to re
move the cotton belonging TO appellant
that he intended to return said four bales 70
the place, but WAS prevented FROM doing So
hy his wagon and teams being taken from
him by the United States forces shortly ai-
ter the removal; that he then determined TO
use this cotton by way of compromising with
the appellant, aud in order TO prevent n law
suit, and to account to his sister for the cot
ION; this was done not because he felt under |
an obligation to account TO the appellant |
for the cotton hut to avoid litigation,
1t appears that there was Other cotton be- |
longing to persons who had purchased IL, to |
considerable amount ia the gin house at |
the Lloyed place, for safe keeping, and that /
the plantation was retired place, M d that
tins other cotton was also stolen about the
same time that the cotton of the appellant
was stohn
In order to determine the rights of the
parties under the facts Of the ease, let us
consider, FIRST, the import of the contract
songhts to he enforced
1t is plainly an absolute sale of the nine
bales of cotton 10 the appellant, all that was
necessary to render this transaction a com
plote sale was sioHea-titc payment or inc
purchase money and the placing of the cotton
under the power Of the purchaser, and ont
of the actual possession OF the vendor II
was ginned and baled and left at a place Of
deposit by the consent of the purchaser, and
nothing was wanting to render the title Of
the purchaser perfect,
Bat the vendor agreed to deliver the cotton
nj Canton, in good order when required to /
do SO, and what was the extent of this obli-
CATION, under the circumstances II is evil
dent thar the intention WAS, that he should
the cotton to Canton when required
by the purchaser for 1t was not in his aetn-
nj possession, but IN aplaec of deposit where
the purchaser wished it to DC and there is
10 IifhNljli NAiAi, inc lktd IlltI IliF
vendor was to be charged with the duty of
keeping the cotton safely II was already
10 the purchaser, ard all that he
appears to have desired further was that it
should be hauled TO the place of shipment
when he required H. This stipulation, inter
Drcted by the accompanying circumstances
ianuOt be held to be "A contract for safe keep
ng, for such contract will nevet be inferred
Jut must always be founded on positive
words or on n very clear manifestation of
iucli an intent. There bcingno contract for
'aie keeping, and there appears TO he 10
paid for his Keeping il, the
position Of the vendor, therefore, Is at most
hat Of naked dcpositary aud that would
be the ease even If the cotton be regarded rs
eft 10 his possession or keeping. iii such !
ase, all that the law requires Of the party /
) good faith aud that diligence that a pIii- !
ent man would use in taking care Of his
wn property. Edwards on Iailinents c. J
o, Keut's Comm. JGi. III the depository K
eeps the goods gTatuitOusly and Without a 4
pecial agreement 10 keep them safely, or 10
AXE good care Of them, he il not responsible
lr their loss unless 1t Ice By reason of gross 1
eglect If, and Il is settled law that, in such
case, he would not be liableif the goods
-crc stolen, When be was not chargeable :,
18th gross neglect Story on BAIL, 572
Again. If the owner agree that the goods q
Jay be kept IN particular place, and they u
re lost there, without gross negligence or n
aud on the part Of the dep0situIy, the own !,
takes The hazard aud canuot Complain !,
tory on Bail, sec. "a. In this case il APP ~
sars that the cottOa was left ia the Gin m
jnse on the Lloyd place. BY the consent Of n
ie appellants; aud there is 40 pretemee that =,
ie appellee was guilty Of any gross neglect Il
fraud which led 20 the loss 81 IT, On the "
ntraTy. the cotton Of another purchaser m
a large amount, had been placed there f0f a
fifty, AVID that WIS stolen likewise. The
,fellee, therefore. did only what Others did
who must be presumed to have been
atchfnl Of their inteFrsts--in leaving the G.
tfoH st that place; and, being under no =.
igation 70 remove il. except - Caution =
bon required and having done AZ that an 81
diuafiy pradcnt man would do II taking w
re Of his own property. he Is DOT r,~pon. ar
iie Tor toe loss hy theft. even II BE- ere =,
argeahle with the duty 81 keeping the -
ton. IS
I non any view that can properly be taken se
the case, we think the appellee was n0f
bic. ssld that tAe dcetee disuissiun siel
1 was correct.
Let the decree be affirmed th
IN
JACK HAWLTox's NIoGER VoTIxe tr'
,NvENrIos.-We perceive that co
Getting Is to lie held tonight at the tie
lOper Institute 70 sustain Jack Ham cir