Brenard Mfg. Co. v. Baird
| Decision Date | 30 November 1925 |
| Docket Number | 25220 |
| Citation | 106 So. 82,141 Miss. 110 |
| Court | Mississippi Supreme Court |
| Parties | BRENARD MFG. CO. v. BAIRD. [*] |
(Division B.).
BILLS AND NOTES. Granting peremptory instruction where evidence was conflicting held error.
It is error to grant a peremptory instruction where the evidence as to the issues in suit is conflicting.
APPEAL from circuit court of Monroe county, HON. C. P. LONG, Judge.
Action by the Brenard Manufacturing Company, a partnership composed of T. O. Loveland and J. L. Records, against R. R. Baird, on notes. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.
Reversed and remanded.
Paine & Paine, for appellant.
The trial court in disregarding the testimony of the appellant's witnesses and the legitimate inference deducible therefrom and granting a peremptory instruction to appellee was acting in direct conflict with the law. Brenard Mfg. Co. v. Little, 105 So. 762; Brenard Mfg. Co. v. B. M. De Shazo, 105 So. 766; McKinnon v. Braddock, 104 So. 154; Brenard Mfg. Co. v. Sumrall, 104 So. 164; Reed Bros. v. Bluff Motor Co., 104 So. 161.
J. O. Prude, for appellee.
The uncontradicted proof absolutely sustains the opinion of the trial court. If the appellant failed to promote the sales of these machines, as shown by the uncontradicted proof in this cause, then it breached its contract with appellee and appellee was thereby given the right to refuse payment of the notes executed by him as a consideration for the contract. Lucile Roote was the only person who could have possibly been a competent witness for the appellant on this proposition, and the record in this cause fails to disclose the testimony of Lucile Roote because she was not examined as a witness in the cause, for reasons not known to appellee.
The trial court could not have done otherwise than sustain the motion for a peremptory instruction asked for by appellee.
Argued orally by Thomas Fite Paine, for appellant.
The appellants, a partnership composed of T. O. Loveland and J. L. Records, sued the appellee on certain promissory notes given in a transaction for the purchase of an agency and two Claxtonola phonographs, and certain records for use with the Claxtonolas. The appellee was to have the exclusive agency for the sale of the Claxtonolas at Amory, Miss., and was to be furnished two different priced and styled Claxtonolas, for which he was to pay three hundred twenty-eight dollars, which amount was divided into several promissory notes sued on in the present case. In this contract it was provided that the buyer was to reorder to replace a Claxtonola which had been sold, and that appellants were to accept appellee's customers' notes when properly indorsed to them. It was provided, also, that if the sales under the contract did not amount to three hundred twenty-eight dollars that the seller was either to pay the buyer the difference in cash or in the repurchase of the phonographs and records, if they were returned in good condition. The sellers were to send their bond in the sum of three hundred twenty-eight dollars to protect the buyer in the contract. The language as to the contract is:
"And you are to send your bond in the sum of three hundred twenty-eight dollars to protect me in the conditions of this contract."
It was then provided that the buyer was to furnish within thirty days the names and addresses of fifty persons who might be interested in procuring these phonographs with whom the sellers were to take up correspondence, and that each sixty days the buyer was to furnish from ten to twenty-five names and addresses of persons interested in procuring such phonographs, to whom the sellers were to send appropriate advertising matter. It was further stipulated that the sellers were to have the right to send special salesmen to the territory to work the field and to promote sales of these phonographs through the buyer's agency. It was then stipulated:
"In order to protect you in your special methods and plans and in your expenditures, this order cannot be countermanded."
This provision was from the buyer to the seller. The order was secured by a salesman representing the seller, but whose authority only extended to procuring and forwarding contracts for the acceptance of the seller. The order or contract was forwarded to Iowa City, Iowa, the place of business of the seller, and was there accepted in a letter dated April 18 1921, notifying the appellee of the receipt and acceptance of the order and receipt of the notes, said notes being dated April 15, 1921. On April 25, 1921, the Claxtonolas were shipped by express from Geneva, Ill., to the appellee at Amory, Miss. On April 29, 1921, appellant wrote the appellee requesting to be furnished the fifty names and addresses of persons interested in procuring Claxtonolas, and the list of names was sent. On receipt of the list of names, on May 6, 1921, the seller wrote the buyer acknowledging receipt of the names, and notifying him they were ready to take up...
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