100 So. 182 | Miss. | 1924
delivered the opinion of the court.
This suit was instituted in the chancery court by the appellant, a corporation engaged in the wholesale jewelry business, to recover from the appellees an alleged balance due upon an account for the sale of jewelry by appellant to appellees. The amount sued for is nine hundred ninety-eight dollars and eight cents, with interest from October, 1921.- If the appellees are liable, the amount is not questioned. The theory of the bill is that the jewelry was sold by complainant to defendants under what is called a contract of sale or return, and that title to these goods was in the appellees at the time they were de
The single question therefore presented in this record is whether or not there was a contract of sale or return of the goods, or whether the goods were merely shipped on consignment to appellees. It was held in the lower court that it was a shipment on consignment, and therefore that appellees were not liable, and the bill was dismissed ; from which decree this appeal is here prosecuted.
The .complainant (appellant) and the defendants (appellees) carried on their negotiations entirely through correspondence. The record discloses this correspondence, .and it is a question of law for this court to say what was the character of this contract.
Though the record indicates that these parties had had business relations before 1917, the written evidence of those transactions is not before the court. These relations were resumed in 1917. In November of that year the two Wilkinsons wrote Soden & Co. a letter stating that they wished to put in a nice line of jewelry, and requesting Soden to send them a list of goods. This request was complied with, and on November 19th these defendants filled in a written order for certain goods made out on a printed order blank form of the appellant. We quote the material part of this order as this constitutes the contract between the parties upon which all of their subsequent business was transacted. It reads as follows:
“Please ship express prepaid a stock of jewelry on memorandum, all' not sold to be returned about January 4,1918. The agreement is to pay only for the goods not returned.”
In addition to this kind of an order blank, it was the custom of the appellant to inclose with each shipment of
“Jewelry shipped--[date to be filled in] received. All not sold is to be sent back to you. Payment is to be made only for what is not returned. ’ ’
Postal cards of this character relating to the shipments in suit were duly signed by these defendants and returned to the complainant.
Advertising matter printed on the letters of the appellant have also to be considered. Under the title ‘ ‘ Our Plan” is printed:
“We put a stock of jewelry into the merchants store. . . . It is shipped in nice display trays, express prepaid. It is billed on memorandum at the net wholesale price, the merchant pays us, once in three months, for the jewelry sold. He ships the jewelry back for brand new stock at least once a year. He invests nothing. He pays only for what he does not return. He can ship the stock back and discontinue any minute.”
On another letter, among other things, is printed:
“Our memorandum plan is unique. The customer invests nothing; his sales are made before he pays. All holiday stocks are filled and shipped expecting that about thirty-three and one-third per cent, is going to be sold. When the holidays are over we expect immediate remittance for all sales. Prompt settlements by all of our customers are absolutely necessary, owing to the enormous capital required to conduct our business.”
With each shipment of goods was an itemized statement showing the amount of goods with the price, etc. Printed on these bills or statements at the top is:
“On-days memorandum.”
On the bottom in red:
“When you accept these goods you assume all risks of loss by fire, theft, or otherwise, and must pay us in full for all that you do not return.”
Also there was inclosed in each shipment a printed paper containing, among other things, the following:
Then follows, of course, the figures indicating the wholesale price and the price usually sold for by the retailer.
The two shipments in question were ordered by letters in January and November, respectively, in 1920. Our attention is called by the appellees to a letter written by them to the appellant during their business relations, in which the appellees referred to them as handling the goods on consignment.
It is also the contention of the appellees that the appellant did business in two ways — one its catalog way, and the other its memorandum way. That the catalog way was the sale of goods, while the memorandum way was only a consignment. It is unnecessary to discuss the catalog way, because the goods here were bought on the memorandum plan.
While the two shipments in question were not ordered on the regular blanks of the appellant, yet the course of dealing, beginning in 1917, as shown by this record, and various orders of appellees filled out on these order blanks, is conclusive evidence that the appellees were entirely familiar with the business methods of the appellant, with the stipulations contained on its letters, order blanks, and other advertisements, and that these two shipments were ordered in the same manner as were the others, and that the same contract existed as to them.
The question of whether there has been a sale or a consignment of the goods depends primarily upon the intention of the parties and the real nature of the transaction, rather than the language which the parties employed. A material question is whether or not the consignee acquires complete dominion over the goods with the right to sell them upon such terms and conditions as
“A contract of sale or return is an agreement by which goods are delivered by a wholesale dealer to a retailer to be paid for at a certain rate if sold again by the latter, and if not sold to be returned.” Story on Sales, section 249.
A very interesting case upon this subject is that of D. M. Ferry & Co. v. Hall, 188 Ala. 178, 66 So. 104 L. R. A. 1917 B, 620. The supreme court of Alabama very interestingly reviews the cases bearing upon this question. To this opinion there is also an exhaustive note.
In this case there was an order for certain goods and an agreement to return those not sold and an agreement to pay for those not returned. There was a price charged for these goods. These defendants had complete dominion over them. They had the right to sell them at any price they so desired. This contract is a much more simple example of a contract of sale and return than the one discussed in the Alabama case.
The decree of the court below will be reversed, and a decree will be entered here in favor of the appellant for the sum of nine hundred ninety-eight dollars and eight cents, with the legal rate of interest from October 25, 1921.
Reversed, and judgment here.
