Fresno Home Packing Company v. Lyon
| Decision Date | 05 December 1910 |
| Citation | 53 So. 585,98 Miss. 228 |
| Court | Mississippi Supreme Court |
| Parties | FRESNO HOME PACKING COMPANY v. ANDREW J. LYON |
October 1910
FROM the circuit court of Lauderdale county, HON. JOHN L. BUCKLEY Judge.
Lyon engaged in business under the name of A. J. Lyon & Company appellee, was plaintiff in the court below, and the Fresno Home Packing Company, a corporation, and another, appellees were defendants there. From a judgment in favor of the plaintiff the defendants appealed to the supreme court. The opinion of the court states the facts of the case.
Judgment reversed and cause remanded.
A. S. Bozeman, for appellant.
The burden was upon the appellee to show a breach of the contract, in that the carload of raisins was not the first car of layers shipped to Meridian by the Fresno Home Packing Company for the season of 1909. The only proof tending to sustain this breach offered by the appellee was that the other cars in question arrived in Meridian first, and that bills of lading were issued at Fresno on the same date.
Yet it distinctly appears from the evidence offered by appellee that the reason why his car arrived after the others, was that there was a delay of three weeks on his car while in transit, and that for this delay, he then had pending a claim against the railroad company.
The car moved as it was routed by the appellee, and the fact that other cars reached Meridian at an earlier date, the fast route being the one selected and subsequently rejected by appellee, was no fault of the appellee who sold the raisins f. o. b. Fresno, and who routed the car as directed by appellee.
It was reversible error for the court below to permit the agent of appellant, through whom the sale was made, to testify that he had a verbal agreement with Lyon, the appellee, that the car in question was to move from seven to fifteen days ahead of the other cars. This testimony was in direct conflict with the terms of the written contract. The negotiations between Lyon and the aforesaid witness were had in January, prior to the making of the contract on May 13, 1909, and all verbal agreements of course merged into the written contract under an elementary and well established principle of law.
The witness being a mere agent of appellant, had no authority to make contracts for appellant, but merely to take orders and make sales subject to the confirmation thereof by appellant. The contract confirmed by the Fresno Packing Company being the only contract ever made between the appellant and the appellees in this case, provided simply that the car was to be shipped as early in October as possible, and that it should be the first car of layers shipped to Meridian by the Fresno Home Packing Company for 1908, grown and packed raisins. Hightower v. Henry, 85 Miss. 476; Cocke v. Blackbourn, 58 Miss. 537; Baem v. Lynn, 72 Miss. 932; Camp v. Renandene, 64 Miss. 549; Odeneal v. Henry, 70 Miss. 172; Lumber Co. v. Lumber Co., 71 Miss. 944; Money v. Peavey, 70 Miss. 260; Wilkinson v. Taylor, 69 Miss. 231.
McBeath & Miller, for appellee.
The undisputed testimony is that on the same day in which the car was shipped to appellee, a car was also shipped to another merchant in Meridian. We do not see how it can be seriously contended that this was a compliance on appellant's part with the contract. The shipping point being Fresno, and the destination being Meridian, cars shipped on the same day from the first point to the second would be likely to reach the point of destination simultaneously.
The reason why appellee insists on having the stipulation inserted that he was to have the first car layer shipment to Meridian, was not based on a mere fancy so he could let the world know that he had the first car which left Fresno. This court must arrive at the conclusion that it was the purpose of appellee to get dried...
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