86 Miss. 454 | Miss. | 1905
delivered the opinion of the court.
Just as we Held in former cases of this appellee that agency-must be determined not by a paper recital, but by tbe actual facts, so Rere we bold that whether the appellee had local branches, so as, with respect to the service of process, to subject it to such service under the operation of Acts 1896, p. 71, ch. 57, must be determined not by averments in the answer, but by the proofs in the case. . The status of this appellee as to service of process upon it under said Acts 1896 means the real status as established by the proof, and not a fabricated status which may be set out in a jileading. We think it clear from the proof that the appellee did have such status under Acts 1896 as authorized the service of process upon it in this state. We think the three-years’ statute applies. Just as in the case of Musgrove v. Jackson, 59 bliss., 390, so here, the liability, if it exists at all, arises not from any express contract, either written or verbal, but from the fact that the appellee coerced the payment of money which it had no right to exact, in which case, because of its obligation to repay such money, the law implies a contract on its part to do so. The distinction sought to be drawn between contracts implied in fact and contracts implied in law cannot be maintained under our statute (sec. 2739). All implied contracts in this state are subject to the bar of three years, as provided in Oode 1892, § 2739. But whether this be true or not, this contract is certainly one implied in law, and so clearly within the bar of this statute.
Affirmed.
