107 So. 557 | Miss. | 1926
The bill alleges, in substance, that the appellant is a corporation, created under the laws of and domiciled in England, "maintains an office and principal place of business in Warren county, Miss.," with a secretary or manager in charge thereof, and owns land and personal property situated in Warren county; that it entered into a written contract with the appellee, by which the appellee agreed to graft one thousand four hundred pecan trees growing on the appellant's land for which appellant agreed to pay him the sum of fifty cents per tree and to make settlement at the end of each week for the number of trees grafted; that the appellee grafted the trees covered by the written contract, and, in addition thereto, "the defendant induced the complainant to go ahead and graft under said contract a large number of trees in excess of the said contract, at the same price, and that said complainant grafted, at defendant's request, nine thousand eight hundred pecan trees in strict accordance with their agreement," for the grafting of which defendant owes the complainant a balance of two thousand one hundred thirty-nine dollars and fifty cents. *434
The Citizens' National Bank of Vicksburg, Miss., was made a party defendant, and is alleged to be indebted to or to have money or effects in its hands belonging to the appellant. The bill was answered by the Citizens' National Bank, but the Central Western Development Company demurred thereto, and also filed a motion to quash the "attachment heretofore issued." This demurrer and motion were both overruled, and an appeal to this court to settle the principles of the case was granted. The appellant's objection on the motion to quash may be disposed of by simply stating that no writ of attachment or sequestration was prayed for or issued herein. The Citizens' National Bank was simply made a party defendant to the bill, and the usual summons for that purpose was served on it, and no defect in the issuance or service thereof is here claimed.
The appellant's first contention is that, although it is a foreign corporation, it is not a nonresident of this state within the meaning of the statute hereinbefore referred to. "The place of its creation ordinarily determines the residence of a corporation within the meaning of an attachment statute," and "a foreign corporation doing business in the state under the laws thereof will be deemed a `nonresident' within the statute making nonresidence a ground for attachment." Fletcher Cyc. Corp. vol. 1, p. 862.
Section 919, Code of 1906 (Hemingway's Code, section 4093), which subjects foreign corporations "found doing business in this state, . . . to suit here to the same extent that corporations of this state are," does not domesticate such foreign corporations or relieve them of liability to attachment on the ground of nonresidence.
The appellant's next contention is that it appears from the bill of complaint that the grafting of the one thousand four hundred pecan trees contemplated by the written contract has been paid for, and that the bill does not allege "at whose special instance and request," or by what agent of the Central Western Company, he was induced *435 to graft the additional nine thousand eight hundred pecan trees, and does not allege "on whose land these nine thousand eight hundred pecan trees were grafted." It was not necessary for the bill to designate the agent of the appellant who acted for it in making this verbal contract, or to allege that the trees grafted were on land owned by the appellant. Of course, the evidence must disclose that the contract, if made, was made by an agent of the appellant acting within the scope of his authority.
The appellee, by his contract, guaranteed that the trees grafted would each produce "a living head," and promised to regraft any which failed to do so, and one of the appellee's contentions is that the bill should allege a fulfillment of this guaranty. The contract does not make the compliance with this guaranty a condition precedent to the right of the appellee to demand payment for grafting the trees, for it expressly provides for payment "at the end of each week for the number of trees grafted." Consequently, any breach which the appellant may have committed of this guaranty or warranty is a matter of defense to be made by answer.
The decree of the court below will be affirmed, and the appellee will be allowed thirty days in which to answer the bill of complaint after the filing of the mandate in the court below.
Affirmed and remanded.
