McClave-Brooks Co. v. Belzoni Oil Works

• Decision Date: 05 March 1917
• Docket Number: 18670
• Citation: 113 Miss. 500,74 So. 332
• Court: Mississippi Supreme Court
• Parties: MCCLAVE-BROOKS CO. v. BELZONI OIL WORKS

74 So. 332

113 Miss. 500

MCCLAVE-BROOKS CO. v. BELZONI OIL WORKS

No. 18670

Supreme Court of Mississippi

March 5, 1917

Division B

APPEAL from the circuit of Washington county, HON. F. E. EVERETT Judge.

Suit by MCCLAVE-Brooks Company against the Belzoni Oil Works. From a Judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed and remanded.

Boddie & Farish, for appellee.

Our contention in the first place is, that there was not a misjoinder of cause of action in the declaration; that by the most strained construction, the third count cannot be considered an action ex delicto, or one sounding in tort. The appellant was suing on the contract for the purchase price of the equipment sold, and not for damages or the destruction of the equipment by the appellee. This count merely recited the reason why the appellant did not comply with the guarantee in the contract giving as their reason that appellee had made it impossible for appellant to do so. This, we submit, it was necessary for appellant to do in the declaration, as otherwise appellant would have been called upon to prove that it did make good its guarantee in the contract had appellee filed the plea of general issue and appellant would not have been permitted to show why it failed to make good its guarantee. In our humble judgment the rules of pleading require that one must show performance of any condition in the contract, or he must account for his failure to perform it. This is all the appellant did in its third count. The court will see from the record that it did not even occur to counsel for appellee that this count sounded in tort until after the appellant had closed its case. We think the evidence fully sustained the allegations of the third count and the case should have been submitted to the jury on this count.

Concede for the sake of the argument, that the declaration was one in contract and tort, then we submit that the proper, and the only course for appellee to have pursued, would have been sustained by the court under the ruling of the court in this case, and then the appellant would have been permitted to amend its declaration, and the case tried on its merits. We think this is the practice in Mississippi, as shown in the case of Town of Hazlehurst v. Telephone Co., 83 Miss. p. 303. If the declaration misjoined causes of action then how could appellee take advantage of this by a motion to strike any particular count in the declaration, the whole declaration being bad.

Again concede for the sake of the argument that the ruling of the court was correct in striking out this count, then we submit that the appellant was entitled to go to the jury on the issue raised by the first two counts in the declaration, the plea of general issue with notice and the counter notice filed by appellant. On this state of the pleadings the same issue was presented as if the appellee had filed a special plea denying liability on the contract for purchase money sued for, for the reason that appellant had failed to make good its guarantee in the contract sued on, with a replication by appellant to the effect that appellee had made it impossible for appellant to make good its guarantee, and a joinder of issue thereon. On this issue the case should have been submitted to the jury.

We submit that the trial court was in error in striking out the third count, then we submit that the appellant was entitled to go to the jury on the issue raised by the first two counts in the declaration, the plea of general issue, with notice, and the counter notice filed by appellant. On this state of the pleadings the same issue was presented as if the appellee had filed a special plea denying liability on the contract for purchase money sued for, for the reason that appellant had failed to make good its guarantee in the contract sued on, with a replication by appellant to the effect that appellee had made it impossible for appellant to make good its guarantee, and a joinder of issue therein. On this issue the case should have been submitted to the jury.

We submit that the trial court was in error in striking out the third count and granting the peremptory instruction for appellee; that the instructions for appellant should have been granted and the case submitted to the jury.

For these reasons, we respectfully submit, the judgment should be reversed.

Percy & Percy, for appellant.

A summary of the third count amounts to the following: The plaintiff undertook to furnish to defendant's mill, machinery which would increase its boiler capacity a certain amount and decrease its coal consumption a certain amount, the chief parts of the machinery being grates. Machinery was furnished and because of defendant's negligence, the grates to some were burned out; wherefore, "because of the conduct on the part of defendant, it became impossible for it to comply with its guarantees." Wherefore, defendant became liable to pay the sum of six hundred and thirty dollars for said equipment. There is a fatal omission in this count, an omission which was intentional. No allegation was made and no proof was made that the machinery at the time it was installed and before the grates were burned out by the defendant, ever would have, even if properly operated, increased the boiler capacity twenty-five per cent or decreased the coal consumption ten per cent. Of course, even if it would do neither of these things, and was wrongfully destroyed, plaintiff could recover in tort for the wrongful destruction of his property, but he cannot recover under his contract of guarantee, unless the machinery furnished by him was up to the guarantee. The proposition is so simple it seems useless to argue it. If "A" contracts to furnish "B" a Packard car and furnished him a Ford, and "B" enraged, drives the Ford into the river and destroys it, 'A' can recover in tort the value of his Ford, but he cannot recover on contract the contract price of his Packard, nor can he recover in contract the value of the Ford. If "C" contracts to sell "D" a gaited horse but delivers to "D" an animal without gaits, and "D" kills the same, "C" can recover the value of the animal killed in tort, but cannot recover in contract the contract price of the gaited animal. In other words, no matter what the wrong of the defendant is, the plaintiff cannot recover in contract unless he performs his part of the contract or could have performed it and was prevented from performing it by defendant's wrongful act. The defendant in the third count does not allege that the machinery ever could have come up to contract and the proof shows beyond the shadow of any doubt that it never did come up to the contract. Even if the error of pleading be overlooked, the failure in the proof cannot be overlooked, and is exactly the same under the third count as it was under the first count. Plaintiff had to prove that the machinery he delivered to the defendant could increase the boiler capacity twenty-five per cent and could decrease the coal consumption ten per cent. This proof was not made and a peremptory instruction for the defendant was inevitable. Plaintiff's whole misconception of what the basic law of contract is may be seen in the third instruction requested by him and refused. (Page 82 of the record.) That instruction is a good instruction in tort, but plaintiff insisted that it is an instruction in contract. It reads in part as follows:

"If the grating and other parts were burnt out...