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and the writer may be protected from an ac "The actual pecuniary damage in an action of tion of libel even if the charge be not made libel can rarely be proved and is never the sole good; but whether or not he will be so pro 3 La. Ann. 69; Miller y. Řoy, 10 La. Ann. 231;

Daly v. Van Benthuysen, tected will depend upon the facts and cir- King v. Ballard, 10 LA. Ann. 557. cumstances of each case. An intemperate and violent letter written to the employer, law on that subject.

These are correct announcements of the making groundless or unprovoked charges against an employé, calculated to injure and the Jury and the judgment thereon rendered

We are of the opinion that the verdict of degrade him and cause his discharge, cannot

are erroneous. The verdict should be set be recognized for a moment as a privileged aside, and the Judgment annulled, avoided, communication by means of which he can and reversed, and it is hereby so ordered and with impunity destroy the confidence of the decreed. It is further ordered, adjudged, and employer in his subordinate and break up decreed that plaintiff do have and recover the relations between them.

judgment against the succession of Timothy The letter of the plaintiff to Orleans was Moroney, the defendant, in the sum of $300, written in respectful terms and called for with legal interest from the date of this judg. no violent answer from Orleans himself, still ment until paid, with costs of both courts. less from Moroney, who is not in any manner referred to in it. There was nothing in that letter calculated to arouse in either Orleans

(125 La. 822) or Moroney any violent anger, or to justify

No. 18,092. any charge against the plaintiff for having SANDERS BAPTIST CHURCH, Inc., et al. written it. The reply of Moroney to that let

V. DENNIS et al. ter was totally unprovoked and reprehensi. (Supreme Court of Louisiana. Feb. 28, 1910. ble. Did he by writing the same render him

On Application for Rehearing, March 28,

1910.) self responsible to the plaintiff for damages, and, if so, to what extent? Counsel of plain

(Syllabus by the Court.) tiff disclaims any intention of setting up Mor- 1. COURTS ($ 224*) —JURISDICTION OF SUPREME oney's reply to Mr. Dymond's letter as a

COURT-AMOUNT IN CONTROVERSY-ALLEGA

TIONS OF PETITION. cause of action. He says that he simply de

Where a petition in a suit avers that the sires to make use of that as giving evidence amount involved is greater than $2,000, but of the defendant's malice. He contends that shows no property involved, indicates no right "malice need not be expressly proved; it may question involved bears upon property having a

possessing a value, or in no way shows that the be implied.” And he cites Cauchoix v. Du- value, the court, in determining the question of puy, 3 La. 206, Kernan v. Chamberlin, 5 Rob. jurisdiction, is not bound by the allegation that 116, and Miller v. Holstein, 16 La. 389, in sup where the value given, the right that is the

the amount is in excess of $2,000, especially port of that proposition. He is legally cor- subject of the controversy, is obviously inflated. rect in taking that position.

The value of the property that is the subject of He next maintains that it is not necessary, the suit, or the money value of the right sought in an action for damages for libel, that the tion of this court.

to be vindicated, is the true test of the jurisdic plaintiff should have established that he has

[Ed. Ņote.-For other cases, see Courts, Cent. suffered pecuniary loss; that damages for Dig. 8 617; Dec. Dig. $ 224.*] mental suffering alone can be recovered, al

(Additional Syllabus by Editorial Staff.) though the party may have suffered no oth

2. COURTS (8 488*)-DISPOSITION OF CAUSEer loss. He refers the court on that subject REMAND FOR WANT OF JURISDICTION. to: Lyles v. Western Union Telegraph Co., Where the Court of Appeal transfers a case 77 S. C. 174, 57 S. E. 725, 12 L. R. A. (N. S.) to the Supreme Court on the ground that it has 534; Lindsay v. Oregon R. Co., 13 Idaho, ing its own lack of jurisdiction, will remand the

no jurisdiction, the Supreme Court, on determin. 477, 90 Pac. 984, 12 L. R. A. (N. S.) 184; cause to the Court of Appeal, that it may decide Wadsworth v. Telegraph Co., 86 Tenn. 693, 8 for itself whether it has jurisdiction, and will S. W. 574, 6 Am. St. Rep. 864; Railroad v.

not direct such court to assume jurisdiction. Griffn, 92 Tenn. 694, 22 S. W. 737; Telegraph

(Ed. Note.-For other cases, see Courts, Cent. Co. v. Mellon, 96 Tenn. 66, 33 S. W. 725; Tele Dig. § 1321 ; Dec. Dig. $ 488.*] graph Co. v. Robinson, 97 Tenn. 638, 37 S. W. Appeal from Civil District Court, Parish of 545, 34 L. R. A. 431; Telegraph Co. v. Frith, 103 Orleans; T. C. W. Ellis, Judge. Tenn. 167, 58 S. W. 118; Gray v. Telegraph

Action by the Sanders Baptist Church, InCo., 108 Tenn. 39, 64 S. W. 1063, 56 L. R. A. corporated, and others, against Joseph L.

Judgment for defend. 301, 91 Am. St. Rep. 706; Parker v. Lumber Dennis and others. Co., 115 La. 463, 39 South. 445; Graham v. ants, and plaintiffs appealed to the Court or Western Union Tel. Co., 109 La. 1069, 34 Appeal, which transferred the case to the South. 91.

Supreme Court. Case transferred to the Plaintiff also insists that no special dam

Court of Appeal. age need be proved (Guice v. Harvey, 14 La. J. H. Ferguson, for appellants. R. A. 198), and that:

Browne and A. H. Browne, for appellees.

On Motion to Dismiss the Appeal. There is no suggestion giving rise to the BREAUX, C. J. We will state, before tak. impression that there are items of value uping up the motion, that the plaintiff is a re

on which the president of the plaintiff corligious corporation.

poration ventures to make the allegation of A number of the members of the church value. There are no salaries or wages inapplied to the district court for an injunc volved; no property value whatever; no right tion to oust Jos. L. Dennis from the pastorate of any kind indicating or showing value. of the church, on the ground that he is an There are two factions in the church, one intruder and a usurper, and acting without contending against the other, we infer, in and the color of right. They averred that he is out of court. Whether the one faction shall aided by a few of the members of the church ; have charge of the church or the other prethat in consequence the church has become sents the only issue. disorganized, quite a number have withdrawn Disputes such as those made evident by the from the church, and many of those remain- record do not disclose that they are of the ing are indifferent members; and also on the least importance or value in any way. ground that the regularly elected trustees We would be pleased to agree with our and deacons, who were ready and willing to learned Brothers of the Court of Appeal upperform their duty under the charter of the on this point. We have not found it possichurch, are denied that right.

ble to so agree despite our desire. ConsiderA motion to bond the injunction was made, ed from every point of view, we always re which gave rise to considerable contention. turn to the thought that the quarrels which

It appears that subsequently the district led to this litigation do not come within this court ordered an election of the trustees and court's jurisdiction. deacons to be held on the 14th of August We determine that we have no jurisdiction. last. Commissioners of election were appoint Whether the Court of Appeal has jurisdiced, and the election was held.

tion, that court will determine, and dispose The defendant sued out a rule upon the of the case, if it finds that it has. plaintiff to show cause why the report of the The case is transferred to the Court of Apcommissioners should not be homologated, peal, whence it came to this court. and those who received the majority of the Appellant or his attorney shall make the votes declared elected trustees and deacons usual oath, if it be the wish to have the case of the church.

transferred. An opposition and exception were filed by

It is ordered, adjudged, and decreed that the plaintiff.

the case is transferred to the Court of ApThe exception raised the question of the peal in three days, if usual formality before Jurisdiction of the court to order an election indicated be followed. and to pass upon the validity of the election, Finally judgment was rendered in favor of

On Application for Rehearing. defendant. The plaintiff in the petition for an injunc

PER CURIAM. In other cases we held tion alleged in general terms that the amount that we would not direct the Court of Appeal involved was in excess of $2,000.

to assume jurisdiction in a matter in which The Court of Appeal arrived at the con- it has denied that it had jurisdiction. Muntz clusion, ex proprio motu, that it was without v. Jefferson, 114 La. 860, 38 South. 586. jurisdiction, dismissed the appeal, and trans The Court of Appeal dismissed the suit on ferred the case to this court as the court hav- | the ground that this court has jurisdiction. ing jurisdiction.

Having found that this court is without This court has not found that it has juris- jurisdiction, we thought it due to the Court diction. The jurisdictional obligation is in- of Appeal to consider and decide originally flated. Despite this obligation, the sum in- as to its own jurisdiction in the case, and volved is less than the lower limit of this therefore it was remanded to that court, court's jurisdiction.

Application refused.

(96 Miss. 781)

Stinson & Mounts. The telegram read as WESTERN UNION TELEGRAPH CO. v. follows: “Macon, Miss., 5—9-07. Stinson & PATTY DRY GOODS CO.

Mounts, Frederick, Oklahoma. We want (No. 14,423.)

building; hold same; letter by mail. (Sign(Supreme Court of Mississippi. April 18, 1910.) ed] R. C. Patty.” R. C. Patty was a memTELEGRAPHS AND TELEPHONES ($ 67*)-Non-ber of appellee corporation, and this teleDELIVERY OF MESSAGES-LIABILITY.

gram was signed by him for and at the re Where a telegram, sent in response to a letter offering to lease property, would not, if quest of said corporation. delivered to the sendee, complete a contract,

The letter referred to in the telegram, and and a contract was not completed by a subse which was duly mailed and received by Stinquent letter sent by the sender, the telegraph son & Mounts, was as follows: "Macon, company was not liable for the failure to deliv- Miss., May 9, 1907. Stinson & Mounts, Freder the message; no damages being shown.

(Ed. Note. For other cases, see Telegraphs erick, Okla.- Dear Sirs: We beg to acknowland Telephones, Cent. Dig. $$ 64-68; Dec. Dig. edge receipt of your valued favor of the 5th § 67.*]

inst., in which you offer us the refusal of Appeal from Circuit Court, Noxubee Coun- your store building to be furnished about

the 1st of June. We immediately telegraphty; Jno. L. Buckley, Judge. Action by the Patty Dry Goods Company ed you we wanted the building, and desired

You failed to inagainst the Western Union Telegraph Com- you to hold same for us. pany. From a judgment for plaintiff, de- close diagram of location, but we think we fendant appeals.

remember pretty well the location. We supReversed and remanded.

pose the $75 per month rental means a comBozeman & Fewell, for appellant. T. W. pleted store, with modern shelving and Brame, for appellee.

counters, ready for occupancy, etc. We

would like to suggest one thing, and that is SMITH, J. This is an appeal from a ver- the inside painting be all pure white. We dict and judgment in the court below award- shall expect the rent to begin August 1st, if ing appellee damages, alleged to have been all things shall be in readiness for us, and sustained by it, by reason of the failure of agreeable to you. Hoping to hear from you, appellant to deliver a telegram sent by ap- and to know the deal is closed, yours truly, pellee.

[Signed] Patty D. G. Company." Appellee was a corporation engaged in a When this letter was received, Stinson & mercantile business at Macon, Miss., and in- Mounts had disposed of the building, and it tended to move to the state of Oklahoma and became necessary for appellee to secure anengage in a similar business there. On May other building, thereby incurring certain al5, 1907, appellee received the following letter | leged expense and damage. At the close of from Stinson & Mounts, a partnership engag. the evidence the court refused to grant aped in the real estate business in Frederick, pellant a peremptory instruction, but grantOkl.: "May 5, 1907. Mr. R. C. Patty, Macon, ed one for appellee. Had this telegram been Miss.—Dear Sir: Your letter, addressed to Mr. delivered, no contract for the building would R. J. Kato, handed to us for attention. Mr. thereby have been completed, and, for that Kato requested us to advise you that he matter, no such contract was completed by would be unable to put up the building that the letter which followed the telegram. The you would desire. We have a building now

case, therefore, falls squarely within the under construction, which will be completed principle announced in W. U. Tel. Co. v. within the next 15 or 20 days, 2742x90ft. | Adams Mach. Co., 92 Miss. 849, 47 South. It is the block just west of Mr. Kato's prop- 412, and the peremptory instruction requesterty, which would be three doors from the ed by appellant should have been given. corner, the First National Bank being the Reversed and remanded. corner building. That we can rent you for $75 per month. This is well-located property, and, if you desire same, advise us by tel.

(96 Miss. 792) egram upon receipt of this letter, and we STATE V. HANEY. (No. 14,531.) will hold same until you can make a trip of

(Supreme Court of Mississippi. investigation. Several parties are wanting

April 11,

1910.) this building, but we will wait until we hear from you before closing a contract. We en- FALSE PRETENSES ($ 26*)—SUFFICIENCY OF

INDICTMENT. close you herewith a diagram showing the

An indictment alleging that defendant, with location of this property relative to the prop- the intention of cheating the prosecutor out of erty of Mr. R. J. Kato. We trust that we his money, unlawfully, knowingly, feloniously, will hear from you immediately.

We are,

and designedly did falsely pretend to the prose

cutor that, if he would lend him $100, he would yours truly, Stinson & Mounts, by

rent and work the prosecutor's land, that deIn reply to this letter appellee delivered fendant gave the prosecutor his note, which to appellant's agent at Macon, Miss., a tele- purported to be given for rent of such land, gram addressed to Stinson & Mounts, which the note,' defendant did no work on the land,

and that, after getting the money and giving telegram was never delivered to the said and never intended to work the same when he

*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

ANCE.

falsely and feloniously obtained said coney, (trary to the statutes in such cases made and etc., does not charge any offense.

provided, and against the peace and dignity [Ed. Note. For other cases, see False Pre-of the state of Mississippi.” tenses, Cent. Dig. $ 31; Dec. Dig. 8 26.*] Appeal from Circuit Court, Warren Coun

Geo. Butler, Asst. Atty. Gen., for the State. ty; Jno. N. Bush, Judge. The indictment of James Haney for ob

MAYES, J. The indictment in this case taining money under false pretenses was charges no offense, and the action of the held bad on demurrer, and the State appeals. court below in sustaining the demurrer and Affirmed.

dismissing the indictment was as it should

have been. This is an appeal by the state from a Affirmed. judgment of the court sustaining a demurrer to an indictment, which charges :

(96 Miss. 693) “That one James Haney, late of the county aforesaid, on the 17th day of December, SPELLMAN et al. v. McKEEN. (No. 14,445.); A. D. 1909, with force and arms, in the coun

(Supreme Court of Mississippi. April 11,

1910.) ty aforesaid, and within the jurisdiction of this court, en and there unlawfully, will-VENDOR AND PURCHASER ($ 230*)—Bona FIDE

PURCHASER-NOTICE-RECITAL IN CONVEYfully, feloniously, and designedly, with the intention of cheating and defrauding one S. A purchaser of land is bound to take noS. Hudson of his money, unlawfully, know- tice of all recitals in his chain of title, but, to

impute constructive notice to such purchaser ingly, feloniously, and designedly did falsely of recitals in instruments affecting his title, pretend to the said S. S. Hudson that, if he such recitals must be such as to put an ordiwould lend him one hundred dollars, he parily prudent person upon inquiry, and so far would rent and work fifteen acres of land lead the purchaser to knowledge of the par:

intelligible that upon proper inquiry they would for the said S. S. Hudson on the Oak Grove ticular fact with notice of which it is sought plantation, in Holmes county, Mississippi, to charge him; and a recital in a deed to the for the farming year of 1904; said contract purchaser's grantor that the consideration was

$2,000 “and other considerations" was not sufbeing of the tenor following:

ficient to impute constructive notice to the pur" $90.00. 23 Apr., 1904. On 15th Novem-chaser that any part of the purchase money was ber, 1904, after date, for value received, I probably unpaid, it indicating nothing more than

that there was a consideration other than the promise to pay to the order of S. S. Hudson

$2,000. ninety 00/100 dollars, at Vicksburg, with in

[Ed. Note.-For other cases, see Vendor and terest at 10% interest per annum from ma- Purchaser, Cent. Dig. $8502–512; Dec. Dig. turity until paid, and in the event that de- $ 230.*] fault is made in the payment of this note at Appeal from Chancery Court, Hinds Counmaturity, and it is placed in the hands of an

ty; G. G. Lyell, Chancellor. attorney for collection, or suit is brought Bill by S. C. McKeen against R. A. Spellupon the same, the additional amount of 10% man and another. A demurrer to the bill was on principal and interest of this note shall overruled, and defendants appeal. Reversbe added to the same as collection fees.ed, and bill dismissed. This note is given for the rent of fifteen

Watkins & Watkins and Alexander & Alexacres of land on Oak Grove plantation, in Holmes county, Mississippi, for the year Green & Green, for appellee.

Horace Pugh and

ander, for appellants. 1904.

his * '[Signed] James X Haney.

SMITH, J. Appellee sold to S. P. Barton mark

certain lands for the sum of $2,000, taking "'Witness: Carl Fox,'

his promissory note therefor due and pay. “After said contract was made by said able at a later date, which said note is still Haney, the said Hudson, on said written unpaid. The only recital in the deed executpromise, gave the said Haney the said one ed by appellee to Barton relative to the conhundred dollars, when in truth and in fact sideration thereof is as follows: "In conhe, the said James Haney, never did work sideration of $2,000 and other considerathe said land for said year, or any other tions, I hereby convey,” etc. This deed was year, and never intended to work the same duly recorded. Barton sold the land to apwhen he falsely, designedly, and felonious- pellants, who had no notice that the purly obtained said money of said Hudson, as chase money therefor was still unpaid. Aphe, the said Hudson, well knew, by color and pellee is a citizen of Vigo county, Ind., and means of which said false pretenses the said is well known therein. He also has business James Haney did then and there knowingly, interests in Hinds county, Miss., and is well feloniously, designedly, and falsely obtain of known therein. The bill in effect alleged and from the said Hudson the sum of one that appellants were put upon notice of the hundred dollars, the property of S. S. Hud- fact that the purchase money of said land son, and of the value of one hundred dollars was unpaid, and that, consequently, appellee lawful money of the United States—con had a vendor's lien thereon to secure the *For other cases see same topic and section NUMPER in Dec. & Am. Digs. 1907 to date, & Reporter Inderas

same, by reason of the recital, “and other uance, though the district attorney agreed to considerations," contained in the deed, and admit that the witness would so testify. prayed that said lands be sold to satisfy said Law, Cent. Dig. ss 1342-1347; Dec. Dig. $

[Ed. Note.-For other cases, see Criminal lien. To this bill a demurrer was interposed,

600.*] and, the same being overruled, an appeal was taken to this court to settle the principles

Appeal from Circuit Court, Chickasaw of the case.

County; Jno. H. Mitchell, Judge In Deason v. Taylor, 53 Miss. 701, the gen

Rube Dobbs was convicted of forgery, and eral rule governing this matter is thus stat- he appeals. Reversed and remanded. ed: “Nothing is better settled than that the Rube Dobbs was indicted and convicted of purchaser of real estate is bound to take forgery; the instrument charged to have notice of all recitals in the chain of title been forged being a check bearing the purthrough which his own title is derived. Not ported signature of one J. W. Harrington. only is he bound by everything stated in | When the case was called for trial, the dethe several conveyances constituting that fendant moved for a continuance because of chain, but he is bound fully to investigate the absence of a witness, Willis Bean, who, and explore everything to which bis atten. appellant avers, if present, would testify that tion is thereby directed.” The qualification the son-in-law of Harrington, who had auof this general rule is as stated in 23 Am. & thority to do so, wrote said check and delivEng. Encyclopedia of Law (2d Ed.) 510: "In ered it to defendant in payment of a debt. order to impute constructive notice to a pur- A subpæna was issued for said witness and chaser by reason of recitals in instruments returned “Not found.” The district attorney affecting his title, the recitals relied upon agreed to admit that said witness would tesmust be so clear and distinct as to put an tify to the facts set out in the application, ordinarily prudent person upon inquiry, and and the court thereupon overruled the apmust be so far correct and intelligible that plication for a continuance and forced the upon proper inquiry they would lead the defendant to trial. purchaser to knowledge of the particular

Geo. T. Mitchell, for appellant. Geo. Butfact or incumbrance with notice of which it ler, Asst. Atty. Gen., for the State. is sought to charge him."

In order to uphold appellee's contention, WHITFIELD, C. J. The testimony of the it would be necessary for is to hold that the witness Willis Bean was vital, and the rerecital, “other considerations," so clearly and fusal to continue on account of his absence, distinctly indicates that the purchase mon- under the showing made in this record, was ey of the land is probably unpaid as to cause fatal error. a reasonably prudent man to make inquiry Reversed and remanded. relative thereto. This we cannot do. This recital indicates nothing more than that

(96 Miss. 807) there was a consideration for the deed other VICKSBURG WATERWORKS CO. v. YAthan the $2,000, and does not in the remotest

ZOO & M. V. R. CO. (No. 14,184.) degree indicate that any part of the pur

(Supreme Court of Mississippi. April 11, chase money is probably unpaid. It is true

1910.) that, by inquiring of appellee, appellants 1. WATERS AND WATER COURSES ($ 201*) – would have learned this fact; but the ques WATER SUPPLY CONTRACTS — ACCEPTANCE tion is: Was it their duty to make such in

OF OFFER.

Five days before the expiration of a fivequiry? The best reasoned case we have seen

year contract between a railroad company and on this subject, and which fully supports a public water company, the manager of the the foregoing views, is Acer v. Westcott, 46 water company wrote the railroad superin

tendent that he could no longer furnish water N. Y. 384, 7 Am. Rep. 355.

at the former rate. The superintendent did not The decree of the court below is reversed, reply, and in two days after the expiration of the demurrer sustained, and the bill dis. the contract the manager wrote again, stating missed.

that at the expiration of the contract he had commenced to charge the railroad at the advanced rate. Eight days after receipt of the

second letter, another official of the railroad re(6 Miss. 786)

plied, refusing to make a contract. Held, that DOBBS v. STATE. (No. 14,479.) the railroad company's silence for eight days (Supreme Court of Mississippi. April 11,

after receiving the water company's proposition, 1910.)

and the acceptance of water after expiration of

the first contract and while the water company's CRIMINAL LAW ($ 600*) CONTINUANCE proposition was pending, and payment made for GROUNDS-ABSENT WITNESS.

the water at the higher price, was not an acIn a prosecution for forgery of a check ceptance of the offer, so as to form a contract bearing the signature of H., accused requested for another five years at the advance price, esa continuance to procure an absent witness, pecially as the water company was a public who would testify that H.'s son-in-law signed service company, and under its charter bound the check with authority to do so, and delivered to furnish water to the railroad company when it to accused in payment of a debt. A sub-properly compensated therefor. pana issued for such witness was returned "Not [Ed. Note.-For other cases, see Waters and found." Held a fatal error to deny the contin-1 Water Courses, Dec. Dig. $ 201.*]

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