176 So. 733 | Miss. | 1937
Lead Opinion
This suit was filed in the circuit court of Jackson county, Miss., on October 23, 1934, against the appellant, and summons thereon was served upon George Kerr, an agent of appellant. Copy of the summons was mailed to the appellant at its office in Chicago, Ill., on October 24, 1934, by the clerk of the court. Thereafter, on December 7, 1934, appellant filed a motion in the circuit court to quash the process on the alleged ground that George Kerr was not its representative in any capacity that would authorize service of process to be served upon him for appellant. In the motion, it was further alleged that appellant had never done any local business in the state of Mississippi, but only interstate commerce, and that George Kerr was only a soliciting agent for the purchase of pecans which would be shipped directly to the appellant at Chicago on a commission basis. Evidence was offered on this motion to quash to substantiate the appellant's contention that it had never conducted a local business in this state, and had no agent on whom service of process might be had, and that the only power George Kerr had was to solicit orders of pecans for appellant to be shipped to it in Chicago, this not constituting intrastate commerce.
Appellee introduced evidence on this motion to quash to show that Kerr purchased pecans outright for appellant, paid for them in Mississippi, hauled them from the premises to the railroad, and had them loaded and shipped to Chicago, and that, in certain cases, Kerr paid for the pecans and they were delivered to him.
Kerr and one of the officers of appellant in Chicago testified that Kerr had no authority to buy pecans or sell them, but that he had, in some cases, done so and had paid advancements thereon out of his own personal funds, for which he would be reimbursed by appellant out of the sales, receiving certain profits.
The court overruled the motion to quash, and appellant *899 asked leave to plead, which was granted, and, pleas having been filed, the case was tried on its merits, resulting in a judgment for the plaintiff, appellee here.
The first question presented for decision is whether the motion to quash effectually brought appellant into court so as to obtain jurisdiction of the person. Section 2999, Code of 1930, reads as follows: "Where the summons or citation, or the service thereof, is quashed on motion of the defendant, the case may be continued for the term, but defendant shall be deemed to have entered his appearance to the succeeding term of the court." This section has been construed by this court in a number of cases, holding that, by filing a motion to quash a process, the defendant entered his appearance. See Batson Hatten Lumber Co. v. McDowell,
In McCoy v. Watson, supra, it was held that, by statute and general practice in this state, there is no such thing as a special appearance in our courts, and that it is our long-settled practice that, when a party comes in, he must come in entirely or else he must stay away. In the course of the opinion it is said that, instead of making the exception, it would be sounder to say that the rule will be kept intact, and that, when a party has appeared for one purpose, he will be kept for all purposes. *900
It is the contention of appellant that the case of Saxony Mills v. Wagner,
The defendant in the case at bar did not choose to avail itself of the right to have the cause continued until the next term, but applied for leave to file pleas, consequently the case proceeded to trial. The appellant filed two pleas, one that it was not indebted to appellee for any greater amount than that paid into court for the benefit of appellee, and the other, the plea of tender, sets forth that on May 1, 1937, appellant paid into *901 court as an absolute tender to appellee the sum of $136.49, being $113.50, with interest thereon from December 18, 1933, to the date of payment, in full settlement of the amount owing by appellant to appellee, and on May 3, 1937, appellant paid to the clerk of the court all costs accrued up to the date of payment, for the benefit and as a tender unto the appellee.
The action of plaintiff is founded upon a stipulation to send appellant a carload of pecans, aggregating 19,560 pounds, under a written contract as follows:
"Pascagoula, Mississippi "November 22, 1933.
"Mr. C.L. Turner, "Moss Point, Mississippi.
"Dear Sir:
"This is to acknowledge the arrangement under which we will handle the pecan nuts shipped by you to our firm at Chicago by freight this day, said shipment embraces (CBQ 132765)
283 sacks, a total of 19,560 Pounds, divided $1564.80 9632 lbs. of Success 7549 lbs. of Stuart 666 lbs. of Van Deman 880 lbs. of Wright 586 lbs. of Lewis 247 lbs. of Schley
"We are to sell these pecans at the best market obtainable and remit for same when sold less our usual commission of 10 per cent, deducting, of course, the freight charges, drayage, if any, which we will pay on arrival of goods in Chicago. We hereby advance eight cents per pound for the entire lot, which will also be deducted from our remittance to you after the sale of the nuts. Assuring you of good and prompt attention, we beg to remain, Very truly yours.
On December 12, 1933, appellant wrote appellee saying, among other things, that: "We have yours of the 9th, and assure you that we will endeavor to realize all we possibly can for your pecans. The majority of them are selling around twelve cents per lb., an occasional sack higher and an occasional sack lower, depending upon quality."
On December 16, 1933, C.L. Turner telegraphed appellant, saying: "Letter twelfth received regret pecans sold price mentioned hope not many. Write me fully amount pecans on hand what storage will cost and hold all shipment left for further instructions," and appellant, on the same date, telegraphed Turner as follows: "Pecans all sold but party in Milwaukee who bought some Success at twelve cents pound complaining about quality says his customers might return them account too many dry and empty so will have to wait for returns as balance Success sold nine cents pound Stuarts mainly twelve cents."
On December 23, 1933, C.L. Turner wrote appellant, requesting, among other things, a definite statement of his account, and in reply thereto appellant sent Turner a statement of sales of said pecans as follows: *903
C B Q 132765 Weight Price or doz. 1 51 18 9.18 283 Sax Pecans 6 430 14 1/2 62.35 39 2536 13 329.68 1 57 12 1/2 7.12 124 7728 12 927.36 8 654 11 71.94 59 4194 10 419.40 45 3218 9 289.62 _______ 18868 $2116.65 Less credits 11.49
Less advance $1564.80
Express $181.49 Freight Cartage 28.30 Ex. Cartage 7.00 Ret'ng Pkgs ___________________________________ Acc't Sale for goods 216.79 2105.16 rec'd 11-27-1933 Commission 210.52 427.31 ___________________________________ By Gridley, Maxon Co., 1677.85 Inc. Less apc 1564.80 27-29 South Water Market ___________________________________ Check above Dated Chicago, Ill. attached $ 113.05 12-18-33
E O E Number 3905 — G
Appellee introduced evidence of pecan buyers at Gulfport, Miss., who transacted business during 1933 and 1934, showing that they sold pecans of like quality to different markets in the United States at prices considerably in excess of the price paid by appellant to appellee in the case at bar. Appellee also introduced testimony to the effect that Kerr, at the time of buying the pecans, said they would bring at least 16 cents per pound, and that appellee's intestate directed him to hold *904 for a better market. This evidence was objected to, and appellant took the position that the writing signed by Kerr for appellant, above referred to, constituted a contract, and that appellant had a right to sell on the best market in Chicago, and that conversations between Kerr and Turner were incompetent because not embraced in writing. The stipulation in the letter of appellant to Turner dated November 22, 1933, that, "We are to sell these pecans at the best market obtainable, and remit for same when sold," etc., does not provide for sales to be made at any one market, but appellant was to obtain the best obtainable price at any available market and was not limited to Chicago. Under the terms of this contract, the action of appellant, as shown by its telegram stating that the pecans were all sold, after receipt of Turner's telegram requesting that all shipments be held, when they had not in fact been all sold, indicated fraud or a purpose to deal unfairly with Turner in regard to his shipment, and he was authorized to show what price could, in all probability, have been obtained by proper and efficient efforts to deal for the advantage of Turner as well as itself.
The evidence referred to above was competent to show unfair handling and sales, and that the price obtained was not the fair market price of the pecans.
The rule pertaining to the rights of appellant and appellee in regard to sales and instructions to hold, as announced in this state, will be found in Cotton v. Hiller,
We think, in view of all the facts in the record, that the jury was warranted in finding for the plaintiff, appellee here. We find no reversible error, and the judgment of the court below will therefore be affirmed.
Affirmed.
Addendum
This case was decided at a former sitting of this court, and the suggestion of error filed has been considered by another judge than the one who wrote the opinion, and it has been brought into conference and discussed, and we deem it proper to reply thereto.
In this case there was sufficient evidence for the jury to find, and the jury did find, that appellant did an intrastate business in Jackson county, Miss., where the suit was brought and the case tried. The principal question presented for consideration was whether the process served upon the agent of the appellant was a proper service, and whether the appellant was engaged in intrastate or interstate commerce.
The appellant having done an intrastate business in this state without complying with the requirements by designating an agent upon whom process may be served *906
and filing same with the Secretary of State, and having filed a motion to quash the process so served, such motion constituted its appearance under section 2999, Code 1930. This has been held by repeated decisions to constitute an appearance for all purposes, the action being transitory and not local. Illinois Central R.R. Co. v. Swanson,
The cause of action here sued on is transitory as distinguished from local, and follows the person; consequently the case is controlled by the above-cited authorities, and the case of Arnett v. Smith,
Whether there is any conflict in the rules announced in the various decisions referred to is not now necessary to consider. The case at bar is controlled by the cases construed under section 2999, Code of 1930, and the suggestion of error, must, therefore, be overruled.
Overruled.
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