77 So. 795 | Miss. | 1917
A.M. Patterson Co. and the Union Cotton Oil Company, a corporation under the laws of Alabama and domiciled at Birmingham, Alabama, entered into a contract on the 5th day of October, 1916, in the following words:
"Union Cotton Oil Company, Birmingham, Alabama. Bill of Sale. Como, Mississippi, 10/5/1916. We hereby sell to Union Cotton Oil Company fifty tons of sound dry cotton seed, to be shipped on or before October 25th, 1916, at price of forty-nine dollars per ton f.o.b. cars at Como, Mississippi, mill weights to govern in settlement. A.M. Patterson Co., by A.M. Patterson.
"Accepted: Union Cotton Oil Company, by J.H. Hendon."
Patterson Co. failed to deliver the seed called for in this contract, and the Union Cotton Oil Company went into the market and purchased the seed at an advanced price, the price of seed having gone up considerably between the date of the purchase under the above contract and the date on which the cotton seed were purchased in December by the Cotton Oil Company, the damage according to the declaration amounting to seven hundred dollars. The defendant pleaded the general issue, and pleaded specially that plaintiff could not enforce his contract because it was a non-resident corporation, and that its charter had not been filed with the secretary of state and the filing fee required paid to the secretary of state under section 935 of the Code of 1906. It also gave notice under the general issue that he received a letter from the plaintiff dated *812
October 9, 1916, in which plaintiff wrote the defendant that it would be all right to delay shipping the seed contracted for for several days, as plaintiff was crowded for room and could use the seed a little later, and that on October 13th the defendant wrote the plaintiff that he was also crowded for room, and he already had the seed contracted for, and unless he was permitted to ship during the week, he would be forced to sell the seed to some one who could receive them at once, and that he never received any reply or further instruction from the plaintiff, and treated the silence of the plaintiff as a refusal to accept the seed, and sold the seed to another party. The plaintiff's proof showed that it was a corporation domiciled at Birmingham, Alabama, created under the laws thereof, and that it had never filed its charter in the state of Mississippi, and that the only way that it did any business in Mississippi was to send a traveling representative, who bought seed from seed dealers to be shipped to Birmingham, and that it required the consent and affirmance of the corporation at Birmingham to make a sale to it, as the salesman had no power to complete a contract; that it had no local agency or office in the state of Mississippi, and it had no plant and did no crushing in the state of Mississippi. It also showed that the plaintiff never received this letter above referred to. Upon this evidence the court below granted a peremptory instruction against the plaintiff. The record shows that the circuit judge granted the peremptory instruction upon the theory that the above contract constituted a Mississippi contract, and that the failure to file the charter made such contract illegal and unenforceable in the courts of this state. We are unable to agree with the circuit judge in this contention. The contract showed on its face that the plaintiff was doing business at Birmingham, Alabama, and that the fifty tons of cotton seed were to be shipped and were to be settled for by mill weights. While it is true they were to be paid for f.o.b. Como, *813
still that does not take it out of the class of interstate transactions. It merely devolved upon the plaintiff to pay in addition to the price stipulated for, whatever freight charges might accrue. The contract could not be completed until accepted by the corporation under the proof in this record; and, as the mill weights were to govern, it is manifest that the cotton seed had to be shipped to the mill in order that the weight should be determined. This shipment would necessarily be an interstate transaction. See Saxony Mills v. Wagner,
Judgment of the court below is accordingly reversed, and the cause remanded.
Reversed and remanded.
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