Gridley, Maxon & Co. v. Turner

• Decision Date: 29 November 1937
• Docket Number: 32862
• Parties: GRIDLEY, MAXON & CO. v. TURNER
• Court: Mississippi Supreme Court

176 So. 733

177 So. 362, 179 Miss. 890

GRIDLEY, MAXON & CO. v. TURNER

No. 32862

Supreme Court of Mississippi

November 29, 1937

Division B

1 APPEARANCE.

A defendant enters his appearance by filing a motion to quash process (Code 1930, section 2999).

2 CORPORATIONS.

The purpose of statute providing that, where a corporation does a local business in state without filing its charter and having an agent upon whom process may be served, process may be served on any person found representing corporation at time transaction involved took place, is to give an effectual process so as to bring a corporation into a court where judgment may be rendered, and that statute has no relation to a motion to quash process (Code 1930, sections 2999, 4167).

3 CORPORATIONS.

Where process on a foreign corporation is invalid or ineffectual and corporation does not appear in answer to suit, question of jurisdiction of the person may be raised in any appropriate proceeding, but, if corporation flies a motion to quash process, corporation is brought into court by appearing for purpose of quashing process, even though process may be insufficient within itself to bring corporation into court, and thereby court is given jurisdiction of the person notwithstanding any defect in process (Code 1930, sections 2999, 4167).

4. FACTORS.

Under terms of contract whereby factor agreed to sell pecans at the best market obtainable, factor's reply to consignor's telegram requesting that all shipments be held, stating that pecans were all sold when they had not in fact been all sold, indicated fraud or purpose to deal unfairly, and consignor's evidence showing what price could have been obtained by proper and efficient efforts was competent to show unfair handling and sales and that price obtained was not the fair market price.

5. FACTORS.

A general consignment to a factor imports authority to sell according to usages of the trade at his discretion concerning time, but consignor may, at time of shipment or afterwards, if before sale, impose terms concerning time and price to which factor must conform.

6. FACTORS.

Where a factor in consideration of a consignment makes advances or incurs liabilities for owner, owner has no right by subsequent instructions to control factor.

7. FACTORS.

Where factor makes advances or incurs liabilities on account of consignment before assent to owner's directions in respect of time of sale or price, factor has thereby acquired a special property and may sell so much of goods as will reimburse him or discharge liabilities.

8. FACTORS.

An owner of property may impose terms on his commission merchant in respect of time of sale or price or both, but, after he has obtained money, credit, or goods from merchant, owner cannot require him to hold until he orders a sale unless owner repays advances or takes up liability.

9. FACTORS.

In consignor's action against factor, evidence that, after receipt of consignor's telegram requesting that all shipments be held, factor replied that pecans were all sold when they had not in fact been all sold, and that pecans of like quality had been sold to different markets at prices considerably in excess of price paid by factor to consignor, warranted jury in finding for consignor.

ON SUGGESTION OF ERROR. (Division B. Nov. 29, 1937.) [177 So. 362. No. 32862.]

CORPORATIONS. Under statute providing that, where summons or citation or service thereof is quashed on motion of defendants, defendants shall be deemed to have entered appearance, foreign corporation which engaged in local intrastate business without designating agent on whom process might be served, and which filed motion to quash process served on one of its agents in transitory action, entered its appearance for all purposes (Code 1930, section 2999).

November 15, 1937

APPEAL from the circuit court of Jackson county HON. W. A. WHITE, Judge.

Suit by Mrs. M. R. Turner, executrix of C. L. Turner, deceased, against Gridley, Maxon & Co. From a judgment for plaintiff, defendant appeals. Affirmed.

On suggestion of error. Suggestion of error overruled.

Affirmed. Overruled.

R. H. & J. H. Thompson, of Jackson, for appellant.

The testimony introduced on the hearing of the motion to quash process discloses that the defendant's employee, George Kerr, was a mere soliciting agent of the defendant as defined in Saxony Mills v. Wagner, 94 Miss. 233, decided at the October 1908 term of this court. The statute being considered in Saxony Mills v. Wagner was Section 3433 of the Code of 1892, as amended by Chapter 61 of the Laws of 1894. The language of Chapter 61 of the Laws of 1894 is identical with the language of Section 2985 of the Mississippi Code of 1930, which last mentioned statute was enacted long before the commencing of this suit and which statute is still in force. It is clear from the undisputed testimony that appellant was never engaged in "doing business" within the State of Mississippi to the extent that the courts of Mississippi ever acquired jurisdiction over its person.

Berger v. Pennsylvania R. R. Co., 9 L. R. A. (N. S.) 1214; Lake Shore & Michigan Southern Ry. Co. v. Hunt, 39 Mich. 469.

The Circuit Court of Jackson County was wholly without jurisdiction to render the judgment here appealed from and the same is absolutely void. The motion to quash should have been sustained and the action abated.

The lower court erred in overruling defendant's motion to suppress the deposition of C. L. Turner insofar as it tended to vary the terms of the written contract sued on.

Baum v. Lynn, 72 Miss. 932; Odeneal v. Henry, 70 Miss. 172; Millburn Gin & Machine Co. v. Ringold, 19 So. 675; Feld v. Stewart, 78 Miss. 187; Cocke v. Blackborum, 58 Miss. 537; Houck v. Wright, 23 So. 422; Hightower v. Henry, 85 Miss. 476; Columbia Milling Co. v. Russell, 89 Miss. 437; Creek-Neal Coffee Co. v. Morrison-Hinton Grocery Co., 96 Miss. 835; Fresno Home Packing Co. v. Lyon, 96 Miss. 228; Gross v. Todd, 94 Miss. 168; McCall Co. v. Parsons, May, Oberschmidt Co., 107 Miss. 865; Hickman Ebbert Co. v. Asa W. Allen Co., 111 Miss. 161; Ismert-Hincke Milling Co. v. Natchez Baking Co., 124 Miss. 205; Porter Hardware Co. v. Peacock, 129 Miss. 129; McInnis v. Manning, 131 Miss. 119; Bettman-Dunlap Co. v. Gertz Bros., 136 Miss. 160; Edrington v. Stephens, 148 Miss. 583; Federal Discount Co. v. Fletcher & Ratliff, 104 Miss. 251.

The matter was fully discussed before the contract was entered into and, after due consideration, Mr. Turner decided to take a chance on the market continuing to rise and, insead of selling the pecans at home, he concluded he would get more by entering into the contract and he entered into the same with his eyes wide open. The market broke and Mr. Turner was disappointed at the outcome. Even according to the testimony of Mr. Turner himself no element of fraud appears and no testimony whatever was offered to contradict the clear cut statements of the witness Kerr who made it plain to Mr. Turner that the proceeds coming to Mr. Turner depended upon the market price whatever it might turn out to be.

Mr. Turner's testimony evidences that he was a man of good intelligence, experienced in the marketing of pecans, that he understood the terms of the contract and knew exactly what he was doing. He was neither defrauded nor led into mistake and, under an unbroken line of Mississippi authorities, the lower court should have excluded all of the testimony tending to vary the terms of the written contract and the judgment here appealed from should be reversed solely because, over objection, this incompetent testimony was admitted.

The lower court erred in refusing to grant the peremptory instruction asked on behalf of defendant.

The lower court erred in overruling that portion of the testimony of M. B. Hardy objected to by the defendant wherein the witness was permitted to state what the custom was with reference to putting pecans in cold storage and holding same over until the following season and was permitted to testify as to transactions had by him with third persons in connection with the sale of pecans, which transactions had nothing to do with the pecans involved in this suit or with the parties to this suit.

The lower court erred in overruling defendant's objection to testimony offered by plaintiff as to the market price of pecans at Pascagoula and Moss Point at the time the transaction involved in this suit was had.

Counsel seem to have conceived that, after the contract was entered into, and the pecans shipped, consignor had the right to vary its terms by instructing that consignee act otherwise than as stipulated in the contract. Consignor had no such right. Consignor could have rescinded the contract basing such rescission on mutual mistake or fraud, had either been present, but consignor made no claim that the contract was entered into by mistake or because of fraud and consignor did not claim or attempt to exercise the right of rescission-- he merely requested consignee to disregard the terms of the contract and not sell the pecans, because he hoped the market would go higher, and that the contract be called off. A written contract, solemnly entered into, cannot be wiped out or rescinded or called off because of mere whim or caprice. The contract sued on was an unconditional contract, uncancellable by its terms, and the consignee (appellant) was under no duty to comply with consignor's request.

Counsel seem to have conceived that defendant was doing business in the state but the facts shown of record disclose that such was not the case and that the traveling solicitor, Kerr performed for and on behalf of defendant no service other than that directly concerned with the promotion of interstate dealings...