D. S. Pate Lumber. Co. v. Weathers

• Decision Date: 06 March 1933
• Docket Number: 30078
• Citation: 167 Miss. 228,146 So. 433
• Court: Mississippi Supreme Court
• Parties: D. S. PATE LUMBER. CO. v. WEATHERS

146 So. 433

167 Miss. 228

D. S. PATE LUMBER. CO. v. WEATHERS

No. 30078

Supreme Court of Mississippi

March 6, 1933

Division A

Suggestion Of Error Overruled May 1, 1933.

APPEAL from the chancery court of Lowndes county HON. T. P. GUYTON Chancellor.

Suit by W. O. Weathers against the D. S. Pate Lumber Company. From a decree for complainant, defendant appeals. Affirmed.

Affirmed.

Owen & Garnett, of Columbus, and Green, Green &amp Jackson, of Jackson, for appellant.

There was a total failure of proof.

Willoughby v. Pope, 101 Miss. 808, 812; Metropolitan Life Ins. Co. v. Hall, 118 So. 826, 152 Miss. 413.

"He who alleges fraud must prove it by clear and convincing evidence."

Edw. Hines Yellow Pine Trustees v. United States, 203 U.S. 144, 68 L.Ed. 219; Illinois Central R. Co. v. Interstate Commerce Commission, 206 U.S. 441, 51 L.Ed. 1128; Christie Grain Co. v. Board of Trade, 198 U.S. 236, 49 L.Ed. 1037.

We fully recognize that as a factor we could not appoint a sub-agent.

Jones v. Sargent, 45 Miss. 337; Smith v. Jefferson Bank (Mo.), 97 S.W. 247.

"If there is a well-established custom in the neighborhood with respect to the amount of compensation to which a broker is entitled under the circumstances of the particular case, the law implied a promise on the part of the persons employing him to pay the usual and customary commissions."

4 R. C. L., sec. 67, p. 332; Hofgesang v. Silver, 232 Ky. 503, 23 S.W.2d 945, 68 A. L. R. 1482.

"If the amount of a real estate broker's commission is not specified, he may recover the customary commission. (4 R. C. L. 332; R. C. L. Perm. Supp., p. 1120.)"

Adams, Inc., v. Astoria Box Co., 249 Ill.App. 174.

"Every commercial contract is entered into with the understanding that usage in regard to the particular matter of the contract becomes a part of the transaction itself."

Luckehe v. First Nat. Bank of Marysville, 193 Cal. 184, 189, 223 P. 547; Andrews v. Waldo (Cal.), 265 P. 535; Eddy v. Schiebel (Conn.), 152 A. 67; Crosland v. Sloan (Ore.), 261 P. 703; Strong v. Ringle (Kan.), 152 P. 631; William R. Smith & Son v. Bloom (Iowa), 141 N.W. 35; Anderson v. Burnett, 6 Miss. 167; 26 C. J. 1136.

Appellant was doing business in this territory upon this basis of ten per cent on the net price as was everyone else, and when appellee employed appellant to do that which was being done by everyone else, appellant was at liberty to do in Rome as the Romans.

Puritas Laundry Co. v. Green (Cal.), 115 P. 661; Schumann v. California Cotton Credit Corp. (Cal.), 286 P. 1069; Buckner v. Leon Co., 204 Cal. 225, 267 P. 693; Peels v. Brown (Neb.), 111 N.W. 798; Sterling-Midland Coal Co. v. Great Lakes Coal Co., 334 Ill. 28, 165 N.E. 793; Stephens v. C. & N.W. Ry. Co. (Wis.), 227 N.W. 875; Pendleton Bros. v. Northern Coal Co., 22 F.2d 317.

Under that contract every wholesaler and factor did business in this territory and received from the small mill man ten per cent net, precisely as appellant initially charged, and that herein by appellee sought is to create thereunder in appellee's favor a preferential status enjoyed by no other small mill man, which, if created after this lapse of many years, will unsettle the business relationships and open a flood gate of litigation.

Finch v. Brannon, 114 So. 259.

"Evidence cannot be heard to vary or contradict the terms of an express contract, but where parties enter into a contract with reference to a particular business or trade, they are presumed to have contracted with reference to the generally known usages of that business or trade, and their contracts are to be interpreted consistently with such usage.

Todd v. Howell (Ind.), 95 N.E. 279; Chicago Portland Cement Co. v. Hofman, 168 Ill.App. 71; Packard v. Van Schoick, 58 Ill. 79; Scaramelli & Co. v. Courteen Seed Co. (Wis.), 217 N.W. 301; Spilo v. Bauman-M'Whirter Chemical Co., 157 N.Y.S. 521; Alabama Chemical Co. v. International Agricultural Corp. (5 C. C. A.), 35 F.2d 907; Paepcke-Leicht Lbr. Co. v. Talley, 106 Ark. 409; Noyes-Norman Shoe Co. v. Cooper, 4 S.W.2d 486 (Mo.) ; City of St. Louis v. St. L. & S. F. R. Co., 129 S.W. 691; Smith & Son v. Bloom (Iowa), 141 N.W. 35; Steidtmann v. Joseph Lay Co., 84 N.E. 641, 234 Ill. 84; J. E. Smith & Co. v. Russell Lumber Co., 72 A. 579; New England Box Co. v. Flint (N. H.), 90 A. 789.

The decree is not based on any pleading.

Love v. Miss. Cottonseed Prod. Co., 137 So. 739; Tomlin v. Combs, 21 So. 782; Steele v. Palmer, 41 Miss. 88; Lee v. Dozier, 40 Miss. 477; Armstrong v. Barton, 42 Miss. 506; Porterfield v. Butler, 47 Miss. 165, 12 Am. Rep. 329.

"A judgment cannot be sustained where it includes an item not presented by the pleadings."

McLeod v. Womach, 50 So. 66.

Under the proof here, the decree is excessive under any circumstances.

William R. Smith v. Bloom (Iowa), 141 N.W. 35.

The place of performance in this contract was Chicago, Illinois, and therefore the law of Illinois should control.

Bailey v. Bansley, 87 Ill. 556, 559; Doane v. Denham, 79 Ill. 131; Taylor v. Bailey, 169 Ill. 181; El Reno Gro. Co. v. Stocking, 293 Ill. 494; Northern Produce Exchange v. Ablon, 169 Ill.App. 633; Canning Co. v. Brokerage Co. 213 Ill. 561; Steidtmann v. Joseph Lay Co., 84 N.E. 641, 234 Ill. 84; Stewart v. Smith, 28 Ill. 397; J. E. Smith & Co. v. Russell Lumber Co., 72 A. 579; New England Box Co. v. Flint (N. H.), 90 A. 789.

The statute of limitations applies.

Fleming v. Grafton, 54 Miss. 85; Gordon v. Anderson, 90 Miss. 684; Federal Land Bank v. Collins, 127 So. 575; Thornton v. Natchez, 80 Miss. 1, 41 So. 498; Adams v. Belt, 100 So. 194; Edwards v. Gibbs, 39 Miss. 173; State v. Furlong, 60 Miss. 844.

Frierson & Anderson, of Columbus, for appellee.

Our claim is that the statute of limitation did not begin to run in this transaction against the appellee, as a defense to prevent his recovering this brokerage charge against him until he actually discovered, or with reasonable diligence, might have discovered the fraud.

Section 2312 of the Code of 1930.

Fraudulent concealment of the cause of action has long been recognized in courts of equity as a cause of postponement of the operation of the statute of limitations until the discovery of the fraud. This is true aside from statutes which have been passed in many jurisdictions.

37. C. J. 972, 352; McFaddin, etc., Land Company v. Texas Rice Land Company (Tex. Civ. App.), 253 S.W. 916, 919; Lieberman v. First National Bank (Del.), 48 L. R. A. 514, 517; Livermore v. Johnson, 27 Miss. 284.

The case of Lewey v. Fricke Coke Company, 166 Penn. State 536, 45 A. S. R. 684, holds very distinctly and elaborates on the doctrine that the statute of limitations does not begin to run against a plaintiff who has been kept in ignorance of his rights by fraudulent practices on the part of the defendant, until discovery of the fraud.

Thompson v. Smith, 7 Serg. & R. 209, 10 A. D. 453; 17 R. C. L. 853 et seq.; 37 C. J. 971 et seq.

We think that the relationship of these parties, of principal and agent, or of principal and factor, was a peculiarly close and confidential relationship, more so in the case at bar than in the ordinary cases of principal and agent.

The obligation of a factor is greater than the obligation of a broker, because a factor has the goods delivered into his hands and possesses very much greater control over the goods than the broker.

It is essential to a valid usage or custom that it be general or notorious in the locality. It is not enough that the act has been frequently done.

Elliott on Contracts, section 1682; 2 Elliott on Contracts, section 1680; Farnsworth v. Hemmer, 83 Mass. 494, 49 A. D. 756; Lemke v. Hage, 142 Wis. 178, 125 N.W. 440, 135 A. S. R. 1066, 1068.

"Although general usage may be shown to remove ambiguities and uncertainties, it cannot be shown and employed for the purpose of destroying, contradicting or modifying what is manifest, or to make a contract where there is none."

2 Ell. Cont. Supp., vol. 8, sec. 1709.

A custom cannot vary or alter an express contract.

Postal Telegraph Company v. Willis, 47 So. 380, 93 Miss. 540; 2 Ell. Cont., sec. 1713.

We will respectfully submit on this proposition that (a) the custom was not proved, (b) it was not such a custom as could be read into the contract, (c) that even if that had been such a custom it could not alter or vary the express contract which had been carefully prepared, evidently by the appellant, and needed no outside help for construction.

Appellant alleges that the sale of the lumber in the instances charged was not a sale by or through a broker but a sale to a broker. We reply to this defense, that no title passed to the broker. No goods were ever delivered to the broker. The broker is not represented in any instance as a purchaser, or dealer, either wholesale or retail. He was nothing more nor less than an intermediary. The lumber was billed to the purchaser, the collection made from the purchaser.

Lawrence Gas Company v. Hawkeye Oil Company, 182 Iowa 179, 165 N.W. 445, 8 A. L. R. 192.

"The factor is one whose business it is to receive and sell goods for a commission; and differs from broker in that he is intrusted with possession of goods to be sold, and usually sells in his own name."

3 W. & Phrases (3rd Series) 497, quoting Commercial Inv. Tr. v. Stewart, 209 N.W. 660, 661, 235 Michigan 502.

If the appellant, who was this middleman employed by appellee, desired to accept the services of the broker and sell to the customers of the broker, then appellant should have divided his own commission with the broker. Appellant should have absorbed whatever commission he would have had to pay the broker.

Shoyer et al. v. Edmund Wright-Ginsberg Co., 240 N.Y. 223, 148 N.E. 328, 330.

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