Leon Michael Co. v. O'Connell-Myers Co
| Decision Date | 12 November 1917 |
| Citation | 115 Miss. 720,76 So. 637 |
| Parties | LEON MICHAEL CO. v. O'CONNELL-MYERS CO |
| Court | Mississippi Supreme Court |
October 1917
APPEAL from the circuit court of Lamar county, HON. A. E WEATHERSBY, Judge.
Suit by the Leon Michael Company against the O'Connell-Myers Company. From a judgment on peremptory instructions for defendant, plaintiff appeals.
The facts are fully stated in the opinion of the court.
Reversed and remanded.
Salter & Hathorn, for appellant.
Looking through this entire record, one is absolutely at a loss to determine upon what theory the court sustained defendant's motion to exclude plaintiff's evidence. And we submit that said action of the court is the only thing involved in this appeal. That there was a good and valid sale entered into by and between the parties hereto prior to the day of November, 1914, the date of the dismissal of the former suit, as shown by the record in this cause, cannot be gainsaid. To say the very least, the record discloses, prima facie, the fact of the sale, delivery, and receipt of the goods and the non-payment of the purchase price. The records certainly discloses a good and binding contract, and one which remained in force until discharged by some method or means recognized by law. Defendant, in the first portion of its motion takes the position that while there was originally a contract of sale, it was abrogated and set aside and for naught held by the agreement of the parties at the time of the dismissal of the suit, November 24, 1914, and in its very next breath, the concluding portion of said motion, it says as to the alleged contract or agreement "does not show that there was any meeting of minds of the parties at all." We wish here to impress upon the court the fact that appellant, in this case prior to the institution of the second suit, took the position that the supposed agreement attempted to be entered into when the first suit was dismissed in the circuit court, was unenforceable because of the lack of mutuality or failure of the minds of the interested parties to meet upon the terms of the agreement and that the original contract remained in force, and that it thereupon brought this suit upon the original contract or sale and that it took all its testimony and offered all its evidence on the trial upon this theory of the case. Appellee said in its motion that "you cannot maintain this suit upon the original contract because we made a new contract with you with reference to these very goods on November 1914, and that said agreement or contract extinguished your rights under it" and then it says further, "you can't maintain any action on the agreement which vacated and set aside the original contract because the former was not any contract or agreement in contemplation of law." And strange as it may appear, that is exactly what the court said in sustaining appellee's motion. The court virtually said to the appellant: "Yes, the O'Connell-Myers Company bought your goods to the amount of one hundred and eighty-nine dollars and thirty-seven cents and have paid you only sixty-seven dollars and four cents on the purchase price, but you can't collect the balance in this suit because on November 24, 1914, you made another trade with appellee with reference to these identical goods, but you needn't go out and bring another action on that second contract and thereby seek to collect an honest debt of one hundred and thirty-three dollars and thirty-three cents, because that second contract, while sufficient to enable defendant to escape payment on the first contract, is not sufficient to give you standing in a court of justice when you try to enforce your rights thereunder." We submit that an examination of this entire record will reveal just such state of facts.
It cannot be seriously asserted nor contended that the agreement, so called, entered into by the parties on the 24th day of November, 1914, was such as to abrogate or set aside the original contract and sale. An examination of the record shows that while the appellant understood the agreement to have been one thing, the appellee understood that the agreement was altogether different. There can be no question upon this point, and appellee does not contend that the original contract was ineffective by virtue of the new agreement, for it says in its motion as to said agreement, "does not show that there was any meeting of the minds at all." Then may we ask what annulled, vacated, or set aside the contract upon which appellant founded its present suit.
We feel that the error is so patent, glaring and flagrant as to need no citation of authorities to warrant a reversal of the cause. The principle is elementary and citation of authority is superfluous, but; "To render an agreement effective as a discharge of a contract, it must have all the elements of a valid contract including consideration. " 3 Elliott on Contracts, 1857. "The new agreement to discharge an existing valid contract must have all the...
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