James B. Berry Sons' Company, Inc. v. Owen

• Decision Date: 28 September 1936
• Docket Number: 32231
• Citation: James B. Berry Sons' Company, Inc. v. Owen, 167 So. 616, 176 Miss. 562 (Miss. 1936)
• Parties: JAMES B. BERRY SONS' COMPANY, INC., v. LLOYD L. OWEN, TRADING As COTTON STATES OIL COMPANY
• Court: Mississippi Supreme Court

167 So. 616

176 Miss. 562

JAMES B. BERRY SONS' COMPANY, INC., v. LLOYD L. OWEN, TRADING As COTTON STATES OIL COMPANY

No. 32231

Supreme Court of Mississippi

September 28, 1936

ON MOTION TO DISMISS. (Division A.) ON MERITS. (Division B Sept. 28, 1936.) [169 So. 685. No. 32231.]

April 27, 1936

1 CORPORATIONS.

Evidence that corporation which allegedly sold inferior oil to buyer and corporation which sold oil used by buyer to blend with inferior oil to make oil salable occupied same offices, had largely same directors and officers, and that all stock of both corporations was owned by foreign corporation, held not to show that corporations were a single entity so as to permit buyer to recoup losses sustained by reason of purchase of inferior oil when sued by corporation selling oil used for blending.

2 CORPORATIONS.

In suit for purchase price of oil used by buyer to blend with allegedly inferior oil purchased by buyer from corporation occupying same offices and having largely same directors and officers as plaintiff, and alleged by buyer to be subsidiary of plaintiff, wherein buyer sought to recoup losses sustained by purchase of inferior oil, evidence held to justify judgment for plaintiff.

APPEAL from the circuit court of Hinds county HON. J. P. ALEXANDER, Judge.

Action by the James B. Berry Sons' Company, Incorporated, against Lloyd L. Owens, trading as the Cotton States Oil Company. Judgment of the county court for plaintiff was reversed by the circuit court, and on a trial de novo judgment was rendered for defendant, and plaintiff appeals. Reversed and rendered.

Reversed and rendered.

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

It is elementary that separate corporations may have the same offices, the same stockholders, the same directors, or one or more of the same in either class, and yet be separate legal entities.

Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441.

The appellee has attempted to combine the Berry Asphalt Company and the James B. Berry Sons' Company, Inc., the appellant, in the person of C. E. Miller, or, at his option and to suit his convenience, in the person of R. S. Gibbs. It is perfectly clear that the two companies were and are entirely separate and distinct legal entities, in spite of the fact that Miller was an officer of one company and employee of the appellant.

The appellant's objection to the introduction of testimony with reference to the transaction with Berry Asphalt Company should have been sustained, and the appellant should have been granted a peremptory instruction by the trial court. However, granting for the purpose of argument that the trial court correctly overruled appellant's objection, it is equally clear, that with all of the testimony in the record, the appellee has made out no defense on the face of the record, and the peremptory instruction should have been given for the plaintiff at the conclusion of all of the testimony.

Harold Cox and A. B. Fulton, both of Jackson, for appellee.

It appears that the actual basis of the appellant's complaint against the judgment of the court below is that the judgment is not supported by the overwhelming weight of the evidence. On the contrary it is respectfully submitted that there is little, if any, testimony whatever from the appellant to contradict the overwhelming proof from the appellee that appellee had all of his negotiations for both shipments of oil with and through the appellant alone. If appellant's contention on this point be sound, which it is not, the trial judge could not have granted the peremptory instruction requested by the appellant, but may have granted a new. trial on this ground, if a motion for a new trial had been filed by the appellant. The appellant did not make a motion for a new trial in this case in the lower court.

Fore v. A. & V. Ry., 39 So. 493, 87 Miss. 211; Newton v. Homochitto Lbr. Co., 138 So. 564, 162 Miss. 20; M. & O. R. R. Co. v. Johnson, 141 So. 581, 165 Miss. 397; Justice v. State, 154 So. 265; State Highway Commission v. Chatham, 161 So. 674, 173 Miss. 427; 3 American Jurisprudence, sec. 385, page 121; Western Union v. Jones, 13 So. 471, 69 Miss. 658; Monk v. Horn, 38 Miss. 100.

A careful search of the appellant's brief has revealed that it is barren of any authority to support his contention. In fact, it may be well assumed that learned counsel for the appellant with all of his skill and industry has searched the entire field of the law in vain for one authority to support the contention which he urges here.

Johnson v. State, 122 So. 529, 154 Miss. 512; Ryal v. Thurman, 124 So. 432, 156 Miss. 1; Goodyear Yellow Pine (Co. v. Lumpkin, 130 So. 745, 158 Miss. 578; E. L. Bruce Co. v. Brogan, 166 So. 350; Bridges v. State, 154 Miss. 489, 122 So. 533; Estes v. Bank of Walnut Grove, 159 So. 104, 172 Miss. 499.

There was abundant evidence in this case to support the verdict of the jury. The jury justly decided that the appellee purchased both shipments of oil from the appellant, and that by reason of the fact that the first shipment of oil was worthless, and that the appellee had sustained an actual damage by reason thereof in excess of the amount sued for, that the appellee owes the appellant nothing.

It is familiar learning that it did not lie within the province or power of either the Berry Asphalt Company to make a sale to the appellee on an order sent the appellant, and likewise it did not lie within the power of the appellant to effect a contractual relation between the Berry Asphalt Company and the appellee without his knowledge or consent. That is just exactly what the appellant has tried in this case so earnestly yet so unsuccessfully to do.

Manning v. Bienville Lbr. Co., 152 So. 885, 169 Miss. 643.

It makes no difference now that it is developed for the first time that the first shipment of oil was actually sold by another corporation. Appellee did not know this at the time, and did not intend at the time to effect a purchase of such oil in July, 1932, from any other than the appellant to whom he gave the order therefor.

A. L. I. on Contracts, sec. 54; 23 R. C. L. 1276, sec. 92; Felder v. Acme Mills, 73 So. 52, 112 Miss. 322.

In the, instant case, the appellee is not, being sued for any balance clue on the first shipment, but he claims his right to set off against the appellant the full measure of damage sustained by him from the first defective shipment.

Parker v. Dantzler Foundry & Machine Works, 79 So. 82, 118 Miss. 126; United States National Bank v. Leflore Grocery Co., 112 So. 700, 147 Miss. 43.

The appellant in this case is, at most, an undisclosed agent of an undisclosed principal, if the transaction had been handled as it intended. If the appellant handed this order of the appellee to the Berry Asphalt Company, without appellee's knowledge or consent, while appellee was undertaking to and thought he was contracting with the appellant alone as principal, then, the appellee would still have recourse for any loss which appellee sustained by reason of the merchandise shipped to him, appellee, in July, 1932, from the purported undisclosed principal.

Globe Realty Co. v. Hardy, 119 So. 192, 155 Miss. 12.

There was never any meeting of the minds of the appellant and the appellee wherein and whereby the appellee undertook to purchase the September, 1932, shipment of oil, except solely in the effort and for the exclusive purpose of improving the quality of the oil which appellee purchased from appellant in July, 1932.

Edwards Hotel Co. v. Chambers, 106 So. 763, 141 Miss. 487.

Argued orally by R. H. Thompson, Jr., for appellant, and by Harold Cox, for appellee.

OPINION

ON MOTION.

Ethridge, P. J.

Per Curiam:

The motion to dismiss this appeal will be sustained unless the appellant executes and files with the clerk of this court a new appeal bond, approved by the clerk of the court below, within thirty days hereafter.

The motion to strike the stenographer's notes from the record will be overruled.

The case will be continued until the next term of this court.

So ordered.

ON MERITS.

Ethridge, P. J., delivered the opinion of the court.

The appellant was plaintiff in the court below, and brought suit against the appellee for three hundred forty-four dollars and ninety-four cents with interest, the balance due upon a shipment of oil amounting to eight hundred forty-four dollars and ninety-four cents upon which account appellee had, at various times, paid the sum of five hundred dollars.

Appellee pleaded the general issue, giving notice thereunder that he would prove that on or about July 1, 1932, he ordered from appellant three thousand and fourteen gallons of lubricating oil, by sample of a serviceable quality and color, for which appellee was to pay the sum of three hundred thirty-four dollars and thirtyeight cents, and on which amount appellee did pay the sum of one hundred sixty-five dollars and ninety-eight cents together with freight charges amounting to fiftythree dollars and ninety cents; that appellant shipped said off to appellee from the...