J. R. Watkins Co. v. Runnels

• Decision Date: 08 March 1965
• Docket Number: No. 43413,43413
• Citation: 172 So.2d 567,252 Miss. 87
• Parties: J. R. WATKINS COMPANY v. A. D. RUNNELS.
• Court: Mississippi Supreme Court

Page 567

172 So.2d 567

252 Miss. 87

J. R. WATKINS COMPANY v. A. D. RUNNELS.

No. 43413.

Supreme Court of Mississippi.

March 8, 1965.

Henley, Jones & Henley, Jackson, for appellant.

Billy C. Little, Magee, for appellee.

KYLE, Presiding Justice:

The J. R. Watkins Company, a corporation organized and existing under the laws of the State of Delaware, domiciled and having its principal place of business in the City of Winona, Minnesota, as plaintiff, filed its declaration in the Circuit Court of Simpson County against Hinds D. Runnels A. D. Runnels and Elton Kennedy, resident citizens of Simpson County, defendants, seeking to recover of and from the defendants the sum of $1,040.25, being the balance due and owing to the plaintiff for goods, merchandise, and other articles, sold and delivered by the plaintiff to Hinds D. Runnels between the 27th day of May 1954 and the 28th day of October 1954, upon his order and request, pursuant to the terms of a written agreement dated May 24, 1954, and duly executed by Hinds D. Runnels, called the 'purchaser', and The J. R. Watkins Company, called the 'Company', and pursuant to the terms of a written agreement of suretyship and guaranty of even date therewith duly executed by A. D. Runnels and Elton Kennedy, as sureties, wherein they jointly, severally and unconditionally promised, agreed and guaranteed to pay for said goods and other articles sold and delivered by the plaintiff to Hinds D. Runnels, as provided in the above mentioned agreement.

By the terms of the above mentioned agreement the Company agreed to sell and deliver to Hinds D. Runnels, the purchaser, at its current wholesale prices free on board cars at Winona, Minnesota, or at its option, at any of its other regular places of shipment, such goods and other articles manufactured or sold by the Company as the purchaser might reasonably require for sale, from the date of said agreement, until the 1st day of April 1957, in the locality in which the purchaser was then engaged, or intended to engage in business. In consideration thereof the purchaser agreed to buy from the Company the goods reasonably required by him and agreed to furnish to the Company complete regular weekly written records, showing separately the amounts of cash sales, time sales and collections, and also agreed to furnish a complete financial statement when requested to do so. The purchaser agreed to pay the Company its current wholesale prices for the goods and other articles sold to him, and also the prepaid transportation charges thereon, if any, by remitting to the Company each week at least sixty per cent of the amount received by him from his cash sales, and from his collections on sales previously made; and at the expiration of the termination of the agreement, to pay the whole amount thereof then remaining unpaid. The agreement further provided that the purchaser should have the right, within thrity days after the expiration or termination of the agreement, to return, by prepaid freight, to the Company in good condition, any goods purchased by him from the Company which he might then have on hand; and the Company agreed to repurchase such goods when received by it and pay or credit the purchaser thereof at the invoice prices at the Company's then prevailing wholesale prices, whichever should be lower. And, finally, the agreement also provided as follows:

'6. The Purchaser shall have no power or authority to make any statement or representation, or to incur any debt, obligation, or liability of any kind whatsoever, in the name of, or for, or on account of the Company.

'7. The Company shall have no interest in the accounts due for goods sold by the Purchaser; and no oral or written statements, printed, advertising or other matter of the Company, sent to, or distributed by the Purchaser; shall be construed to direct or control the sale or other disposition of said goods, or to change or modify the terms of this agreement.

'8. * * *

'9. It is also mutually agreed that this is the complete, entire and only agreement between the parties, and that it shall not be varied, changed, or modified in any respect except in writing executed by the Purchaser and by an officer of the Company, and that either of the parties hereto may terminate this agreement at any time, if by giving the other party notice thereof in writing by mail.'

The agreement of suretyship and guaranty executed by the sureties was as follows:

'In consideration of the execution of the foregoing agreement by The J. R. Watkins Company, which we have read, or heard read, and fully understand and hereby agree and assent to, and its promise to sell, and the sale and delivery by it, to the Purchaser, as vendee, of goods and other articles, as therein provided, we, the undersigned sureties, do hereby waive notice of the acceptance of this agreement, notice of default or of nonpayment, and waive action required upon notice, by any statute against the Purchaser; and we jointly, severally, and unconditionally promise, agree and guarantee to pay for said goods and other articles, and the prepaid transportation charges thereon, at the time and place, and in the manner in said agreement provided. And we further severally agree that, in case of the death of one or more of us, the undersigned sureties, before the expiration or termination of this agreement, his estate shall continue liable with the surviving surety or sureties for all shipments made to the Purchaser prior to receipt by the Company at Winona, Minnesota, of written notice by registered mail of such debt.'

The plaintiff's declaration was filed on July 27, 1956. Attached to the declaration as exhibits thereto were copies of the above mentioned agreements and an itemized statement of the account of charges made by the Company against Hinds D. Runnels for goods, merchandise and other articles sold and delivered to Hinds D. Runnels during the period from May 27, 1954, to and including October 28, 1954, amounting to $1,273.74, and also credits for amounts paid on the account aggregating the sum of $233.49. The balance shown to be due on the account was $1,040.25.

The defendants filed a joint answer to the plaintiff's declaration on September 9, 1958, and in their answer denied in general terms their liability for the payment of the account, and as matters of affirmative defense the defendants averred in their answer that the plaintiff was a nonresident corporation carrying on a mercantile business in the State of Mississippi without qualifying to do business in Mississippi, and for that reason had no legal right to invoke the aid of the courts of this state to enforce payment of the debt alleged to be due under the agreement sued on. The defendants also averred in their answer that the plaintiff had breached the contract with the defendants, and had failed to credit the defendant Hinds D. Runnels with all payments made by him on the account referred to in the plaintiff's declaration. The defendant Henry D. Runnels also filed an affidavit in which he stated that to the best of...