Chorley v. Miles F. Bixler Co.

• Decision Date: 31 March 1930
• Docket Number: 28513
• Citation: 157 Miss. 177,127 So. 294
• Court: Mississippi Supreme Court
• Parties: CHORLEY v. MILES F. BIXLER CO

127 So. 294

157 Miss. 177

CHORLEY v. MILES F. BIXLER CO

No. 28513

Supreme Court of Mississippi

March 31, 1930

Division B

SALES. Countermand. Return of goods. Storage of returned goods. Obligation to pay. Under sales contract, sale held complete and not subject to countermand by buyer on delivery of goods to carrier; seller by taking goods returned and storing them for buyer's account held not to release buyer from duty to pay for goods.

Where a persons signs a written contract unambiguous upon its face which provides, "salesmen have no authority to change or add to these terms, except in writing, upon this original order which is subject to our acceptance; not subject to countermand; delivery to carrier is delivery to purchaser purchaser to pay the charges, etc.," and where the seller delivers the goods ordered to the carrier, the buyer has no right to return the goods so ordered, and, if after notice that seller will not rescind, the seller takes the goods returned and places them in a warehouse for the account of the buyer, his so doing does not release the buyer from duty to pay for the goods.

HON. W A. ALCORN, JR., Judge.

APPEAL from circuit court of Quitman county HON. W. A. ALCORN, JR. Judge.

Action by the Miles F. Bixler Company against Jessie Chorley. From an adverse judgment, defendant appeals. Affirmed.

Affirmed.

Gore & Gore, of Marks, for appellant.

The seller of goods under contract has three remedies, first, to ship the goods and stand and recover on the contract price, or, second, treat the contract as ended, retain the goods as its own, and sue for the difference between the contract price and the market value at purchaser's residence, or, third, sell the property at the best price obtainable at purchaser's residence if there is a market there, and sue for the difference between the resale price and the contract price. But, the seller cannot hold the goods without complaint or notice to the purchaser that the possession of the goods by the seller is a qualified one and for her account and keep the goods and recover the full contract price.

American Cotton Company v. Herring, 84 Miss. 693, 37 So. 117; Cragen v. Eaton, 133 Miss. 151, 97 So. 532; 35 Cyc., p. 538; Lischoff v. Bargain House, 135 Miss. 449, 100 So. 278; McDonald Cotton Company v. Mayo, 38 So. 372; 24 R. C. L., pp. 86, 87; Strauss v. Furniture Company, 76 Miss. 343, 24 So. 703; Swann v. West, 41 Miss. 104; Thayer Export Lumber Company v. Naylor, 100 Miss. 841, 57 So. 227; Warder v. Pischer, 110 Wis. 363, 85 N.W. 968; Walker Bros. v. Daggett, 115 Miss. 657, 76 So. 569.

Where the seller holds the property for an unreasonable time after breach of the contract, he will be held to have elected to treat it as his own.

Guy v. United States, 25 Ct. Cl. 61.

E. C. Black, of Marks, for appellee.

Where goods are shipped by sellers in full compliance with contract and buyer refuses to accept said shipment and same is returned to seller, who holds same for the account of buyer after notice to her of its refusal to rescind the contract the buyer is liable for the contract price.

American Cotton Company v. Herring, 84 Miss. 693, 37 So. 117; Swann v. West, 41 Miss. 104; Walker Bros. & Company v. Daggett, 115 Miss. 657, 76 So. 569.

Argued orally by W. E. Gore, for appellant.

OPINION

Ethridge, P. J.

Miles F. Bixler Company, appellee, sued the appellant, Miss Jessie Chorley, in the county court on a contract order for one hundred sixty-four dollars; a copy of the written contract being made an exhibit to the declaration. It was alleged that the goods, wares, and merchandise ordered in the said contract were delivered to the defendant on the 12th day of June, 1928; that under the said contract the defendant had the option to pay for the goods in six equal amounts, due two, four, six, eight, ten, and twelve months from date of invoice, otherwise the full amount to be due sixty days from date of invoice; that the defendant failed to exercise her option to pay said account in installments, but elected to take the sixty days; that the said sixty days had long since expired, and plaintiff demanded judgment for one hundred sixty-four dollars, with six per cent. interest.

Exhibit A to the declaration is the written order listing the assortment of jewelry, etc., ordered, amounting to one hundred sixty-four dollars. After itemizing the articles, the order reads:

"'Our Silent Salesman' No. 4, loaned for the exclusive display of 'Bixler Staple Jewelry Guaranteed.'

"Exchange service. At any time within six months, we will, upon receipt of any goods purchased from us on this order, exchange them dollar for dollar for any goods carried in our stock.

"Warranty. If at any time, for any cause, an article purchased of us proves unsatisfactory, it must be promptly returned, and we will replace it with a new one free of charge.

"Advertising. We will mail to eighty people a personal invitation to each to call and inspect the line, names and addresses to be furnished by purchaser. Purchaser to redeem these invitations at fifty cents each in jewelry at retail. We to redeem these invitations at fifty cents each in jewelry at retail when returned to us.

"Terms of payment: Six equal amounts due, two, four, six, eight, ten and twelve months from date of Invoice. Purchaser to promptly advise acceptance of these terms; otherwise six per cent discount or net sixty days.

"Salesman has no authority to change or add to these terms except in writing on this original order which is subject to our acceptance. Not subject to countermand. Delivery to carrier is delivery to purchaser, purchaser to pay the charges, jewelry shipped by express, showcase by freight.

"The Miles F. Bixler Co.,

"Wholesale Only, Cleveland, Ohio.

"Please ship the above described goods on the above terms.

"Purchaser's signature Miss. Jessie Chorley

"Date 5/16

"P. O. Sledge County Quitman State Miss.

"Express Office Station Sledge Freight office...