Hattiesburg Chero Cola Bottling Co. v. Nugrape Bottling Works
| Decision Date | 07 May 1928 |
| Docket Number | 27072 |
| Citation | 116 So. 885,150 Miss. 762 |
| Court | Mississippi Supreme Court |
| Parties | HATTIESBURG CHERO COLA BOTTLING CO. v. NUGRAPE BOTTLING WORKS et al. [*] |
1. BILLS AND NOTES. Evidence. In action on notes given in consideration of trade agreement, violation of agreement may be shown by evidence aliunde notes; breach of trade agreement established as consideration or part thereof for notes is defense in action on notes; in action on notes, defense of violation of trade agreement in consideration of which they were given may be proved orally or by writings other than notes.
Where promissory notes are given in consideration of a trade agreement between the buyer of bottles and the seller of bottles and the seller agrees not to sell within the restricted territory, and such agreement is violated by the seller, the trade agreement may be shown aliunde the notes. Where the trade agreement is established as a consideration or a part of the consideration, and is breached by the seller, it is a defense to the action, and such defense may be proved orally, or by other writings than the note.
2. EVIDENCE. Where consideration in writing is not contractual in terms, true agreement may be proved by parol evidence real consideration of note may be shown unless recital of consideration contained therein is contractual in its nature.
Where the consideration in a writing is not contractual in its terms, the true agreement may be proven by parol evidence. It is permissible to show the real consideration of a promissory note, unless the recital of consideration contained in the note is contractual in its nature.
APPEAL from circuit court of Marion county, HON. J. Q. LANGSTON, Judge.
Suit by the Hattiesburg Chero Cola Bottling Company against the NuGrape Bottling Works and another. From a judgment for defendant, plaintiff appeals. Affirmed.
Case affirmed.
R. D. Ford, for appellant.
Davis & Conner and Mounger & Mounger, for appellees.
This suit was brought by the appellant, Hattiesburg Chero Cola Bottling Company, to recover from the appellees, NuGrape Bottling Works and G. B. Hall, the principal, interest, and attorney's fees on three promissory notes of one hundred eighty-eight dollars and thirty-one cents each, all of which were dated August 10, 1926. The appellees, in addition to filing the plea of the general issue, also filed three special pleas, which in varying terms set up a failure of consideration arising out of a claim that the appellant had violated the trade agreement between the parties to this suit.
Both the appellant and the appellees were manufacturers, bottlers, and wholesale distributors of soft drinks, the appellant having its place of business in Hattiesburg, Miss., and the appellees at Columbia, Miss.
On the 9th day of July, 1926, G. B. Hall, manager of the NuGrape Bottling Works, upon learning that the appellant had taken orders in the vicinity of Columbia for delivery of certain soft drinks, made an engagement with the manager of the appellant company, to see whether or not some arrangement could be made with reference to this matter. At that time it appears the appellant was going to abandon the use of its six-ounce bottles, and use in their place the nine-ounce size, the result of such change leaving a large quantity of the six-ounce bottles on hand. The appellee G. B Hall, acting for his co-appellee NuGrape Bottling Works, proposed to purchase a quantity of appellant's small bottles, the six-ounce size, and pay for same at a certain price per gross. It appears that this offer was satisfactory to the appellant, and also that it was agreed between the appellant and the appellees that the appellee NuGrape Bottling Works, in consideration of the mutual agreement reached between the two companies, would not work any territory in Lamar county or Jeff Davis county, except Prentiss, in Jeff Davis county, and Olah, in Lamar county; and the appellant on its part, in consideration of the mutual agreement reached between the manager of the appellant company and Mr. Hall, the manager of the appellee company, agreed not to work any territory west of Lamar or Jeff Davis counties. The agreements between the parties, expressed in the form of letters, were each dated July 10, 1926, and on the bottom of ...
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