Brenard Mfg. Co. v. Miller & Robinson
| Decision Date | 01 December 1930 |
| Docket Number | 29015 |
| Citation | 158 Miss. 892,131 So. 274 |
| Parties | BRENARD MFG. CO. v. MILLER & ROBINSON |
| Court | Mississippi Supreme Court |
Suggestion of Error Overruled, February 9, 1931.
APPEAL from circuit court of Marshall county, HON. T. E. PEGRAM Judge.
Suit by the Brenard Manufacturing Company against Miller & Robinson. Judgment for defendants, and plaintiff appeals. Reversed, and judgment entered for plaintiff.
Reversed.
D. M. Featherston, of Holly Springs, for appellant.
Appellant did approve and accept appellee's order and it became a binding contract and the consideration therefor a promise for a promise.
Couret v. Conner, 118 Miss. 374.
This order cannot be countermanded. The order or contract and the notes executed by the appellee in this case were printed on the form of the appellant, and similar orders and notes differing only as to dates, debtors, etc. have been before this court and construed in the following cases:
Brenard Mfg. Co. v. Sumrall, 139 Miss. 507; Brenard Mfg. Co. v. Baird, 141 Miss. 110; Brenard Mfg. Co. v. DeSchazo, 105 So. 766; Brenard Mfg. Co. v. Little, 141 Miss. 762.
Delivery to the express company was delivery to the appellee. Sethness Co. v. Home Ade Bottling Co., 111 Miss. 151.
A party cannot take advantage of his wrong, and the maker of a promissory note cannot set up as a defense thereto, a failure of consideration which has resulted from his failure and refusal to comply with his part of the agreement.
Cook v. Whitfield, 41 Miss. 542.
The fact that the appellant afterwards took the returned merchandise out of the express office and stored it to save charge and expenses does not relieve appellee from the obligation to pay according to his contract.
Chorley v. Miles F. Bixler Co., 127 So. 294.
Upon breach of contract to purchase personal property the seller has three remedies.
Colt Co. v. Odom, 136 Miss. 651, 101 So. 853; American Cotton Oil Co. v. Herring, 84 Miss. 693, 37 So. 117.
Fant & Fant, of Holly Springs, for appellees.
A promise furnishes no consideration for the notes. Consideration must be essentially quid pro quo, something bargained for. The notes are payment for property rights and not payment for a chose in action.
The whole weight of authority in America is to the effect that if the contract is wholly executory the price cannot be recovered.
Acme Food Co. v. Older, 61 S.E. 235, 17 L. R. A. (N. S.) 807.
"If the binding offer to accept be not withdrawn, or the agreement to take the goods not broken, delivery is meeting of the minds of the parties," and accords with a basic principle of the law of contracts. But, if the contract be broken, and the consent of the purchaser withdrawn before delivery the title does not pass by the assent of the parties and there is no power in a court of law to compel specific performance of any kind of contract.
Acme Food Co. v. Olden, 61 S.E. 235, 17 L. R. A. (N. S.) 807.
When appellant took the goods and kept them in utter silence for more than two years, the only reasonable inference is that it had abandoned its position and retaken the goods as its own. Such action constitutes a total failure of consideration.
Walker Bros. v. Daggett, 115 Miss. 657, 67 So. 569; Chero Cola Bottling Co. v. Nugrape Bottling Works, 150 Miss. 762, 116 So. 885.
By the weight of authority, where the executory contract of sale is repudiated by the buyer at a time prior to delivery of the goods by the seller to the carrier for transportation to the buyer, the seller cannot pass title to the goods by making delivery to the carrier so as to entitle him to maintain an action to recover the purchase price.
27 A. L. R. 1231, 11 Annotations; Oklahoma Vinegar Co. v. Carter, 116 Ga. 140, 59 L. R. A. 122, 94 Am. St. Rep. 112, 43 S.E. 378; Rounsaville v. Leonard Mfg. Co., 127 Ga. 735, 56 S.E. 1030; Bixler v. Poulas, 23 Ga.App. 633, 99 S.E. 139; Thorn v. Danzinger, 50 Ill.App. 306; Barrie v. Quinby, 206 Mass. 259, 92 N.E. 451; Mayo v. Latham, 159 Mich. 136, 123 N.E. 561; Sherman Nursery Co. v. Aughenbach, 93 Minn. 201, 100 N.W. 1101; Fredrick v. Willoughby, 136 Mo.App. 244, 116 S.W. 1109; J. B. Colt v. Watson (Mo. App.), 247 S.W. 493; Laird v. Pim, 7 Mees. & W. 474; Valpy v. Oakley, 16 Q. B. 941, 21 Eng. Rul. Cas. 39; Gordon v. Harris, 49 N.H. 376; White v. Solomon, 164 Mass. 516, 519, 30 L. R. A. 537, 42 N.E. 104; Collins v. Delaporte, 115 Mass. 159; Whitney v. Thacher, 117 Mass. 523.
The rule denying a recovery of the price is very generally upheld where the contract of sale is wholly executory and is breached by the buyer's repudiation of the contract before tender by the seller.
If the seller retakes the goods with the knowledge or consent of the buyer and converts them to his own use, he cannot then recover the price.
Appellant brought this action against appellees in the circuit court of Marshall county on six promissory notes aggregating the sum of four hundred twenty-two dollars, which notes appellees had theretofore executed and delivered to appellant; and, in addition, a reasonable attorney's fee, as provided in the notes, which notes represented the purchase price of three "Golden Throated Claxtonolas," commonly called phonographs, and the exclusive right on the part of appellees to sell that make of phonograph in certain territory described in the contract of purchase. There was a trial resulting in a directed verdict and judgment for appellees, and from that judgment appellant prosecutes this appeal.
At the conclusion of the evidence, both parties asked for a directed verdict. Appellees' request was granted, and appellant's refused, and that action of the court is assigned and argued as error by the appellant.
The material facts in the case are undisputed. They are substantially as follows:
On the 16th day of November, 1922, appellant and appellees entered into the following contract in writing:
Goods Purchased in This Order.
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National Surety Corporation v. BRUNSWICK CORPORATION
...Fire Ins. Co., 259 N.C. 181, 130 S.E.2d 311 (1963) and 6 Appleman, Insurance Law, Secs. 4196, 4225 (1942). 6 Brenard Mfg. Co. v. Miller & Robinson, 158 Miss. 892, 131 So. 274 (1930); Magnolia Lumber Corp. v. Czerwiec Lumber Co., 207 Miss. 738, 43 So.2d 204 (1949); In re Sadler's Estate, 232......
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Magnolia Lumber Corporation v. Czerwiec Lumber Co., 37255
...orders. This was sufficient to make the transaction a completed contract. The language of this Court in Brenard Manufacturing Co. v. Miller & Robinson, 158 Miss. 892, 131 So. 274, 276, is directly in point: 'Until appellant accepted and approved the order contract, it was a unilateral contr......