Bologna Bros. v. Morrissey

• Decision Date: 21 May 1963
• Docket Number: No. 9946,9946
• Citation: 154 So.2d 455
• Parties: BOLOGNA BROTHERS et al., Plaintiffs-Appellees, v. Mike T. MORRISSEY, Deceased, and Elizabeth M. Morrissey, et al., Defendants- Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 455

154 So.2d 455

BOLOGNA BROTHERS et al., Plaintiffs-Appellees, v. Mike T. MORRISSEY, Deceased, and Elizabeth M. Morrissey, et

al., Defendants- Appellants.

No. 9946.

Court of Appeal of Louisiana, Second Circuit.

may 21, 1963.

Rehearing Denied June 20, 1963.

Brunini, Everett, Grantham & Quin, Vicksburg, Miss., Sevier, Yerger & Sevier, Tallulah, for appellants.

Kizer, Heaton, Craig & Cangelosi, Baton Rouge, Lancaster & Baxter, Tallulah, Teller, Biedenharn & Rogers, Vicksburg, Miss., for appellees.

Before HARDY, GLADNEY and AYRES, JJ.

GLADNEY, Judge.

The obligations herein sued upon arose out of business transactions between Bologna Brothers, a Louisiana partnership engaged in the State of Louisiana in selling whiskey at wholesale, and Mike T. Morrissey, engaged in the business of selling whiskey in the City of Vicksburg, Mississippi. This suit was instituted in the Parish of Madison by Bologna Brothers as the holders and owners of certain promissory notes, made and executed by Mike T. Morrissey and Elizabeth M. Morrissey in the State of Mississippi, for the recovery of an indebtedness of $40,000.00 with interest and attorney's fees. While suit was pending Mike T. Morrissey died on February 20, 1960, and his legal heirs were substituted as parties defendants. All defendants are residents of the State of Mississippi and jurisdiction was acquired through attachment of property in Madison Parish. In response to plaintiffs' petition, an exception of no cause and no right of action was filed and by the court referred to the merits, after which issue was joined by answer, and the cause was tried on its merits. Judgment was rendered favorable to plaintiffs, as prayed for, with maintenance of the lien and privilege resulting from the writs of attachment. From this decree the defendants have appealed.

During December of 1953 Morrissey purchased from plaintiffs, who conducted wholesale establishments in Baton Rouge and Bogalusa, Louisiana, whiskey of the value of $75,000.00. On December 22, 23 and 29, 1953, the whiskey was placed upon Morrissey's truck in Baton Rouge for the purpose of being transported to Morrissey's place of business in Vicksburg. In connection with each purchase Morrissey sent his truck, driven by his driver, Melvin Fendley, who was fully authorized by Morrissey under power of attorney to sign invoices, accept deliveries and act for and on behalf of his principal in securing and transporting the whiskey to Vicksburg. In each instance a representative of the Department of Revenue of the State of Louisiana witnessed the loading of the liquor into Morrissey's truck, and issued an export transportation permit to Morrissey, permitting his driver, Fendley, to transport the merchandise out of the State of Louisiana to Morrissey's premises at Vicksburg, Mississippi. By this procedure under LSA-R.S. 26:372 such exported beverages were not subject to the Louisiana tax. In order to secure such permit Fendley swore that the alcoholic beverages were purchased from plaintiff in Louisiana. After deliveries were made to Morrissey, the latter's checks given in payment of the invoices for the whiskey were dishonored.

On January 22, 1954, Morrissey caused some ten promissory notes to be drawn up by Leo Boolas, a certified public accountant in Vicksburg. These notes, each in the sum of $5,000.00, were payable at one year intervals, to Bologna Brothers at the Merchants National Bank & Trust Company of Vicksburg. The notes were signed by Elizabeth M. Morrissey and Mike T. Morrissey, as co-makers. On August 30, 1956, two of these notes were renewed by the same parties. All of the notes were executed, delivered and made payable in Vicksburg, Mississippi. Mrs. Morrissey, while admitting to her signature on the notes, testified she knew that her late husband was engaged in the liquor business, but that she had no interest in the business and never took part in it in any way, she having signed the notes as a good wife to help her husband. It was further shown that the property of Mrs. Morrissey seized and attached in this suit in Madison Parish, was her separate property, having been inherited from an aunt.

The defense does not deny Mike T. Morrissey purchased the whiskey in question from plaintiffs as alleged, nor do the defendants deny Morrissey sold the whiskey in the course of his business in Vicksburg, and that the whiskey has not been paid for. Their reason for non-payment of the obligations is on the basis of a Mississippi prohibition statute which provides that if any person gives credit to another for intoxicating liquor, he shall lose the debt.

Plaintiffs insist the particular sales under consideration were made in Louisiana, that the notes sued upon, although executed in Mississippi, were given for Louisiana purchases and were valid in Louisiana as Louisiana contracts. The trial court found that when the liquor was loaded on Morrissey's truck in Louisiana, Bologna Brothers lost control of it and it became Morrissey's property, and that the sale in question was a Louisiana sale, consummated and completed in this state. According to defendants the sales took place at Vicksburg, Mississippi, where they contend Bologna Brothers maintained a large stock of merchandise and sold to Morrissey for cash and delivered it to him from a separate enclosure in Morrissey's warehouse. The trial judge could see no connection between what was called the enclosed whiskey and the whiskey sold by Bologna Brothers to Morrissey in December of 1953, and concluded that the notes, although executed in Mississippi, were in payment of a Louisiana obligation and were, therefore, governed by the laws of this state, and not Mississippi.

On the appeal appellants urge that the judgment of the trial court is in error in finding that the sales of liquor from Bologna Brothers to Morrissey in December of 1953 were completed in Louisiana rather than in Mississippi, and also was in error in its application of the law of the State of Louisiana in determining the validity of the notes sued upon. It is further argued by appellants that when the children of Mike T. Morrissey after his death were made substituted parties, such was done with reservation of their rights and without prejudice under articles 801--805 of the LSA Code of Civil Procedure, and accordingly, the judgment as rendered should have been limited to their liabilities as heirs of Morrissey to the assets of his succession.

The appellants charge the trial court first erred in not finding the liquor sales in question were completed in Vicksburg, at which place full ownership passed to Mike T. Morrissey. In support of this contention Mrs. Alice Woody and Carlisle Long testified as to the manner in which stocks of liquor purchased from Bologna were handled on the Morrissey premises during a period in the latter part of 1953 or the first part of 1954. During 1953 an employee of Morrissey named Johnny Serio was in charge of the stock and some time in 1954 he was succeeded by Carlisle Long. Serio did not testify. The effect of the testimony is that the liquor purchased from Bologna was kept in an enclosure which was separated from that of other whiskey purchased by Morrissey; that when Serio was in charge the whiskey removed from the Bologna stock was accounted for by a check from Morrissey, counter-signed by Serio, which check was promptly deposited to the account of Bologna; and that after Long took charge the withdrawals were handled on a cash basis. Mrs. Woody's testimony leaves considerable doubt as to whether this arrangement commenced prior to the receipt of the December purchases which are here involved. That whiskey was not identified and perhaps only Serio could have made such an identification. The purpose of the testimony was to show that delivery of the whiskey purchased from Bologna did not occur until it was dispensed by Serio or Long from the enclosed stock on Morrissey's premises. This evidence as to the passage of title to the liquor with which we are concerned in this case, is most unsatisfactory and we are in accord with the views of the district judge on this issue. Consequently, it is our holding that a preponderance of the evidence shows the purchases made during December of 1953 were unconditional and delivery was complete and the sales were consummated when such merchandise was loaded upon Morrissey's truck and placed in care of his driver, Fendley.

The requirements for a completed sale are set forth in Articles 2439 and 2456 of the LSA-Civil Code, and read:

'Art. 2439.

'The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself.

'Three circumstances concur to the perfection of the contract, to wit: the thing sold, the price and the consent.

'Art. 2456.

'The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered, nor the price paid.'

The prices for each purchase were shown on the invoices made up upon each of the three transactions and there was immediate delivery of the whiskey at the time of each sale on to the truck of Morrissey at Bologna's places of business in Louisiana. These sales and the debts arising out of them are traced directly to the notes sued upon. Mr. Boolas verified the debts for which he prepared said notes. The evidence is void of any circumstance indicating that the transactions were not complete upon delivery at the time when the whiskey was loaded on the trucks. The driver of the truck, Fendley, signed an affidavit under power of attorney of Morrissey stating that the beverages 'were purchased'. This declaration of purchase was required in order to secure an export permit for immediate transportation out of Louisiana.

Although...