McCall Co. v. Hughes
Decision Date | 14 October 1912 |
Docket Number | 15,709 |
Citation | 102 Miss. 375,59 So. 794 |
Court | Mississippi Supreme Court |
Parties | THE MCCALL CO. v. W. D. HUGHES |
APPEAL from the circuit court of Jackson county, HON. GEO. S. DODDS Special Judge.
Suit by McCall Company against W. D. Hughes. From a judgment for defendants, plaintiff appeals.
The facts are fully stated in the opinion of the court.
Reversed and remanded.
Denny & Denny, for appellant.
In The Bank of Newberry v. Stegall, 41 Miss. 142, it was held that if one part (of a contract) is good, and can be separated from the bad, the whole will not be held void, and to bring the case within the rule invoked, the matter must be entirely independent of the bad.
The instant case is in full accord with such rule. The consideration for the contract was the promises of McCall Company to sell and deliver and of Hughes to receive and pay for. It is not provided that such promises were contingent upon the two stipulations mentioned or that there would be a breach of the contract or that same would become void by the failure of Hughes to observe same.
At the most the stipulations complained of by appellee were mere matters of inducement or persuasion contained in the offer of appellee, doubtless, with intent to aid in securing assent of appellant to the proposition of selling its patterns to appellee. Appellee voluntarily offered to do the very things that he now says rendered the contract void and ineffective. Upon his promise to pay for patterns mentioned in his offer the appellant was induced to deliver goods to him to the value of more than nine hundred dollars, the promises to sell and deliver and to pay for being separate and distinct from the stipulations involved and in nowise dependent upon or connected with same, and now that appellee has defaulted in his promise he is undertaking to deprive appellant by virtue of his, appellee's own wrong. His position is unconscionable to say the least.
It is quite clear that the stipulations involved in second and third pleas of appellee form no part of the consideration for the contract and, if the court is inclined to hold that such stipulations are bad, then we say that such should be eliminated from the contract and appellee's promise to pay enforced as though such mere matters of inducement, made by appellee, had never been in contract.
The contract between appellant and appellee has been executed. The goods have been delivered to and received by appellee and he has paid a material part of the purchase price for same. In the case of Andrews et al. v. New Orleans Brewing Association, 74 Miss. 362, 20 So. 837, this court declares that one party to a contract which had been executed and who had been benefited thereby cannot plead its illegality in a suit to recover thereon. In the case just cited the defense was based on the fact that appellants there had not paid the privilege tax due the state for conducting business of wholesale dealer in malt liquors, and this court in its opinion said:
"Without expressing any opinion as to the illegality of the business carried on in Vicksburg by the appellee under its arrangements with the Vicksburg Liquor & Tobacco Company, it is clear that such illegality may be conceded, and yet the appellee's right to recovery is not affected thereby. For, conceding the illegality of the business, the question still remains whether the appellant's company can be allowed to receive for the appellee's use money which arose out of the illegal transaction then consummated and ended, and retain it as against the appellee, for and on whose account it was received. It is unnecessary to discuss the question, for it was long ago carefully and elaborately examined and definitely settled in this state in Gilliam v. Brown, 43 Miss. 641. Said the court in that case "The principle seems to be well established that, after the illegal contract has been executed, one party in possession of all the gains and the profits resulting from the illicit traffic and transaction will not be tolerated to interpose the objection that the business which produced the fund was in violation of law, and therefore the plaintiff jointly interested in its gains and profits, cannot ground any claim to an account and share thereof." In Howe v. Jolly, 68 Miss. 323, 8 So. 513, Gilliam v. Brown, was cited and followed, and this question declared to be completely settled by that case.
In the case at bar the appellee has received from appellant all the benefits he was entitled to under the contract, which is one of partnership more than of bargain and sale, and, having fully enjoyed, is seeking to say that the contract was illegal and illegal because of his own acts and through no fault of appellant.
The learned judge of the circuit court in overruling demurrers of appellant, relied upon the case of Dr. Miles Medical Co. v. John D. Park & Sons Co., contained at pages 276-387 in advance sheets, No. 9 of date May 1, 1911, of opinions of the United States Supreme Court (semimonthly numbers).
In the last above mentioned case there was a contract between Dr. Miles Medical Co. and John D. Park & Sons Co. for the sale of certain medicines, in which it is provided that the goods should be sold at prices fixed by the medical company. It was alleged in the complaint that all wholesale and retail druggists "and all dealers in proprietary medicines," had been given full opportunity without discrimination, to sign contracts in the form stated, and that such contracts were in force between the complainant "and over four hundred jobbers and wholesalers and twenty-five thousand retail dealers in proprietary medicine in the United States."
The contract in that case was vastly different from the contract in case at bar. There the stipulation for fixing the price was a material part of the consideration and there was in fact a combination affecting the trade in medicine involved throughout the United States, whereas the stipulations complained of in contract in case at bar formed no part of the consideration and are but mere matters of inducement made by appellee in his offer to purchase the goods of appellant.
Another and very material difference between the case of Dr. Miles Medical Co. v. John D. Parks & Sons Co., supra, and the case at bar is that the purpose of that suit was to enforce that part of the contract by injunction to prohibit sale of the goods at prices other than those contemplated by the contract, while in the case at bar the only end sought is payment of the value of goods purchased and received by appellee and we submit that the decision rendered by Justice Hughes merely holds that the medical company was not entitled to enforce that feature of their contract affecting prices. It is not stated there that appellee was relieved of his obligation for the goods.
Appellee Hughes received the goods of appellant and has doubtless profited greatly thereby. To permit him to acquire, hold and use the goods of other persons in the manner that he is attempting in this case would be unconscionable to say the least, in fact it would enable appellee to perpetrate a fraud that the law of Mississippi will not countenance and that this court will not tolerate.
Ford, White & Ford, for appellee.
It is idle for counsel to insist that these objectionable provisions were not a material part of the contract. They are just as much a part of the contract as any other provision of it and the original and amended declaration in this cause demanding the penalty clause provided for, shows exactly what parts of it...
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