
    Metropolis Brewery, Inc. v. Nassour, Etc.
    March 8, 1954
    No. 39121
    56 Adv. S. 34
    70 So. 2d 601
    
      Dabney & Dabney, Vicksburg, for appellant.
    
      
      John W. Prewitt, Vicksburg, for appellee.
   Lee, J.

This is an appeal by Metropolis Brewery, Inc. from a verdict and judgment of the Circuit Court of Warren County which awarded to it a part only of its demand against George M. Nassour, doing business as Vicksburg Wholesale Beer Distributors.

The Brewery Company charged in its declaration that, on March 17, 1949, it shipped to Nassour a carload of beer and ale, of the value of $5,108.52; that, after the allowance of proper credits, $3,420.20 remained unpaid, and it demanded judgment for that amount.

The answer of Nassour denied that he owed that amount. He set up by way of affirmative matter that, under a contract and agreement with the plaintiff, he was the exclusive agent for Champ Ale and was to receive 5‡ for every case sold in Mississippi; and that the plaintiff was to reimburse him for the cost of advertising. He alleged that 25,000 cases were sold in the State; that his commission thereon amounted to $1,250; and that the plaintiff had not reimbursed him for advertising in the sum of $824. Besides, he alleged that the plaintiff gave away 25 cases of old stock, which he had on hand, for which he was entitled to a credit of $117. These claimed credits aggregated $2,191. He therefore admitted liability for the difference, to-wit, $1,229.

In its replication, the Brewery Company denied that Nassour was its exclusive agent in the State; and denied that it had sold 25,000 cases to other dealers; but averred that only 1,500 cases were so sold. It averred that Nassour submitted bills for only $419.32 for advertising, for wbicb be was entitled to credit; and denied bis claimed credits for $117 and $1,250. But, because of tbe allowed credit on advertising, it reduced its demand to $3,000.88.

On tbe disputed issue of fact, tbe evidence was sufficient to warrant tbe jury in allowing tbe credits for $824 and $117.

Tbe evidence was also sufficient to warrant tbe jury in finding that shortly after February 20,. 1948, tbe Brewery Company appointed Nassour as its exclusive agent for 1948; that be was to receive 5$ per case for sucb products as were sold in tbe State; and that sucb agreement extended into 1949. Nassour testified that be sold at least three cars, wbicb ran from 1,200 to 1,500 cases to tbe car, or a total of 4,000 cases, in 1948. He also claimed that be was entitled to credit for at least 4,000 more cases. It is elemental that tbe burden was on him to sustain this claim. But bis proof thereon failed — -it amounted to a mere opinion. He offered a witness from tbe State Tax Commission, who testified that tbe Brewery Company reported tbe sale of 2,805 cases for 1949. Nassour admitted that bis contract was terminated after be got hurt in May or June 1949, though be continued to handle these products as long as February 1952. This admission ended bis claim for commissions for 1950, 1951 and 1952. His proof, therefore, was insufficient to sustain credit for commissions on more than 4,000 cases for 1948 and 2,805 cases for 1949, or a total of 6,805 cases, for a total amount of $340.25.

Thus, tbe aggregate of credits, wbicb tbe jury was warranted in finding in bis favor, amounts to $1,281.25 against an original claim of $3,420.20. Consequently, tbe verdict should have been for tbe difference, that is, $2,138.95.

In view of tbe fact that tbe verdict of tbe jury was $1,229 when it should have been not less than $2,138.95, the judgment of the lower court will be corrected here accordingly, and as corrected, will be affirmed.

Affirmed as corrected.

Roberds, P. J., and Hall, Kyle and Gillespie, JJ., concur.  