Panola County Bank v. J. O. Nessen Lumber Co

• Decision Date: 22 April 1918
• Docket Number: 19953
• Court: Mississippi Supreme Court
• Parties: PANOLA COUNTY BANK v. J. O. NESSEN LUMBER CO

78 So. 516

117 Miss. 583

PANOLA COUNTY BANK v. J. O. NESSEN LUMBER CO

No. 19953

Supreme Court of Mississippi

April 22, 1918

March 1918

Division A

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

Suit by the Panola County Bank against the J. C. Nessen Lumber Company. From a judgment for defendant, plaintiff appeals.

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

Judgment reversed, and cause remanded.

P. H. Lowrey and Lomax & Tyson, for appellant.

Gardner, McBee & Gardner, for appellee.

OPINION

SYKES, J.

The appellant bank filed suit in the circuit court against appellee for the recovery of two thousand, nine hundred, eighty-five dollars and thirty cents, a balance alleged to be due the plaintiff as the assignee of McPherson Bros. on certain lumber transactions had between McPherson Bros. and the Nessen Lumber Company, the said transactions growing out of a contract made between Nessen and McPherson Bros., a copy of which is attached to the declaration as an exhibit. Under written assignments to the bank, made Exhibits B and C to the declaration, it claims this alleged balance. Attached to the declaration as an exhibit is also filed an itemized account showing in detail the number of cars shipped on the orders of defendant, the price due for same, and showing the payments made by Nessen to McPherson Bros. and also the payments to the bank. In short, the account purports to show all debits and credits of every nature by and between the bank, McPherson Bros., and Nessen. The defendant pleaded the general issue and gave notice thereunder of certain special matter it would prove on the trial. No denial under oath of the execution of the contract as required by the statute was made. After the introduction of the testimony of plaintiff in the court below, a motion to exclude the same and instruct the jury to return a verdict for the defendant was granted, and judgment was entered in favor of the defendant, from which this appeal is prosecuted.

The record in the case shows that during the introduction of testimony a contract was handed to the witness McPherson and he was asked if McPherson Bros. had a contract with the Nessen Lumber Company, to which he replied," Yes." The stenographer's notes then show:

"(Plaintiff here offers in evidence a certain contract to witness.) You are the one that made that contract? Yes, sir."

It is contended by the appellee that this contract was not sufficiently identified as the contract sued on, and is not part of the record in this case. We think the appellee is correct in the contention that the contract introduced in evidence is not sufficiently identified by the stenographer's notes.

He is in error, however, in claiming that it is not a part of the record in this case. It is expressly made a part of the record in the case by section 735, Code of 1906 (section 518, Hemingway's Code). Since the execution of the contract is not denied under oath, as provided in section 1974, Code of 1906 (section 1634, Hemingway's Code), then, under the decisions of this court, it was unnecessary for the plaintiff to offer the contract in evidence. This question is fully discussed in the case of Elmslie v. Thurman, 87 Miss. 537, 40 So. 67. While the Thurman case is a chancery case, at the same time a reading of the same will show that on this question the same rule pertains both in the circuit and chancery courts. See also, Hamer v. Rigby, 65 Miss. 41, 3 So. 137. In the last case the case of Gale v. Lancaster, 44 Miss. 413, relied upon by appellee is discussed and distinguished. This question is also discussed in the cases of Wanita Mills v. Rollins, 75 Miss. 253, 22 So. 819, and Brown v. Mortgage Co., 86 Miss. 388, 38 So. 312.

One of the provisions in the contract is as follows:

"You [Nessen Lumber Company] are to pay us the f. o. b. mill selling price, less two per cent. cash discount upon receipt of bill of lading and tally of car at final destination; and all advanced moneys to be deducted from each shipment per thousand feet, and to be figured and construed as cash payments."

It is contended by the appellee that, under the above provision of the contract, four essential facts must be established by plaintiff before a recovery may be had on this contract: First, an order must be received by them from the defendant; second, a shipment must be made by McPherson Bros.; third, a bill of lading and invoice must be sent by McPherson to defendant, showing the contents of the car and its delivery to the railroad company; fourth, the car must be tallied at its final destination and upon the basis of such tally settlement was to be made. The declaration sufficiently alleged the necessary facts. The appellee concedes, and it is a fact beyond all controversy, that, by the testimony, the plaintiff proved the first two of these propositions, but he claims that he failed to prove the third and fourth. As to the third essential, as claimed by appellee, the testimony explicitly shows that a bill of lading and an invoice was sent by McPherson to the defendant, showing the contents of the car and its delivery to the railroad company, as each car was shipped.

It is claimed, however, by the appellee, first, that it was necessary for copies of all these bills of lading to be made a part of the declaration, as they constituted a part of the written contract sued on. It is only necessary, however, for the plaintiff to attach to his declaration the written contract which is the foundation of the suit. Written evidences of various transactions under the contract are mere evidence of the performance of the contract, and these evidences need not be attached to the declaration, under the statute. Vanschoiack v. Farrow, 25 Ind. 310; Day v. Bowman, 109 Ind. 383, 10 N.E. 126; Trapnall v. Byrd, 22 Ark. 10; Kingsland, etc., v. St. Louis, etc., 29 Mo.App. 526.

It was also proven that these cars were shipped upon the written orders of the defendant. The same objection made...