Paymaster Oil Mill Co. v. Mitchell

Decision Date29 September 1975
Docket NumberNo. 48281,48281
Parties17 UCC Rep.Serv. 1173 PAYMASTER OIL MILL COMPANY, a Division of Anderson Clayton and Company, Plaintiff-Appellant, v. Dennis MITCHELL, Defendant-Appellee.
CourtMississippi Supreme Court

Brunini, Everett, Beanland & Wheeless, Robert A. Weems, Vicksburg, for plaintiff-appellant.

David Shoemake, Collins, for defendant-appellee.



Paymaster Oil Miss Company brought suit in the Circuit Court of Covington County to recover damages for breach of contract. It alleged that Dennis Mitchell, the appellee, failed to deliver the quantity of soybeans he had agreed to supply, thereby monetarily damaging the plaintiff. After hearing evidence of both plaintiff and defendant, the trial court 'directed a verdict' for Mitchell based upon the 'force majeure' statute of the Uniform Commercial Code, specifically Mississippi Code Annotated section 75-2-617 (1972).

In July 1972 Mitchell, a farmer of Covington County, discussed with Benny Franklin, the plant manager of Paymaster Oil Mill Company, the prospects for fall delivery of soybeans to Paymaster. An oral agreement between the two was reached whereby Mitchell contracted to deliver 4000 bushels of soybeans at $3.11 a bushel in October and November of 1972. On July 19, 1972, a written confirmation, prepared by Paymaster, was executed by Mitchell and Franklin corroborating their oral agreement. In addition to the amount, price, and time of delivery the confirmation contains the following language: 'We confirm the purchase from you, as per our conversation Dennis Mitchell/Benny Franklin. . . .'

In August Covington County suffered a severe and unusual drought, greatly damaging the soybeans Mitchell was cultivating. He did not notify Paymaster of his damages, but delivered to Paymaster in October and November 1835.51 bushels, his entire crop.

In the meantime Paymaster, relying on the agreement for delivery of 4000 bushels of soybeans at $3.11 a bushel, had contracted for its products to be sold and when the failure to deliver 4000 bushels occurred, was compelled to purchase soybeans at $3.66 per bushel to cover the deficit. This suit is for the losses incurred by Paymaster by reason of the greater price it had to pay for beans to make up the shortage occasioned by Mitchell.

As mentioned, the trial court 'directed a verdict' for Mitchell after evidence had been introduced by both parties and both had rested their case. We are of the opinion the 'directed verdict' was properly granted and that the case should be affirmed. The reasons therefor require that the appellant's assignments of error be considered in conjunction with each other rather than separately. They are: (1) The court erred in sustaining the defendant's motion for a directed verdict, (2) erred in admitting testimony in violation of the parol evidence rule and (3) refused to admit evidence of custom and uses of the soybean trade.

The plaintiff's case was based upon the written agreement for the delivery of 4000 bushels of beans at $3.11 per bushel and evidence that Mitchell delivered only 1835.51 bushels, creating a deficit which was overcome by the purchase of beans at a higher price. This evidence established a cause of action upon which the plaintiff was entitled to recover. The trial court therefore correctly overruled the defendant's motion for a directed verdict at the close of the plaintiff's case.

However, the defendant then testified, over objection, to the conversation between him and Franklin in explanation and supplement of the written agreement. This evidence follows:

'A. I was directed back to his office, introduced myself, he introduced himself, we shook hands, I told him I was a soybean farmer in Collins, Mississippi, I had 200 acres of soybeans, I'd love to book them, and what's the price today. He explained to me the price was $3.11. He asked me how the beans looked. I told him excellent.

Q. You told him what?

A. Excellent. He asked me how my neighbors' beans looked and I told him wonderful. He gave me the price of $3.11. We discussed how many acres to book and, to be on the conservative side, he suggested 20 bushels to the acre, which was agreeable to me; and I dismissed myself and come on back to the house.

Q. All right, sir. Now, tell me, based upon the conversation between you and Mr. Franklin, tell me whether you discussed this in terms of bushels or in terms of acres and expected production from those acres?

A. Mr. Adams, the conversation reflected all three. I believe he initiated, 'How many acres do you have?' My answer, '200 acres.' Okay. To be on the conservative side, let's book 20 bushels to the acre, which would-4,000 bushels; and that is what we agreed on, 4,000 bushels.

Franklin, Paymaster's manager, when queried on the contract between him and Mitchell, stated that he did not recall whether the conversation occurred in person or whether it was by telephone, testifying: 'I cannot testify as to the specifics of the conversation, I cannot,' and when reexamined on the point, repeated that he simply did not know and could not recall any part of the conversation with Mitchell. When pressed by counsel, he stated he did not know Mitchell's occupation and consequently did not know that he was a farmer.

At the time of the defendant's motion for a peremptory instruction the trial court had evidence before it additional to that at the conclusion of the plaintiff's case. The trial court sustained the motion, reasoning there was no conflict of evidence or inferences arising for resolution by the jury. We are of the opinion the peremptory instruction was properly granted.

We have held many times that in passing on a motion for a directed verdict the court must look only to the testimony adduced for the plaintiff and accord truthfulness to it and indulge all favorable inferences that could be drawn therefrom, and if either is sufficient to support a verdict, then the motion for a directed verdict should be overruled. We have also stated in considering a motion for a directed verdict that it should be overruled even though a verdict in favor of the plaintiff would be contrary to the overwhelming weight of the evidence. King v. Dudley, 286 So.2d 814 (Miss.1973).

In announcing this rule we have often used the term 'solely' or 'only,' or their equivalent, thereby restricting the evidence considered for the purposes of the motion to that of the plaintiff. Ezell v. Metropolitan Ins. Co., 228 So.2d 890 (Miss.1969); Meaut v. Langlinais, 240 Miss. 242, 126 So.2d 866 (1961); Buntyn v. Robinson, 233 Miss. 360, 102 So.2d 126 (1958), and other cases not necessary to cite. We have also stated the test for determining whether or not a motion for a judgment notwithstanding the verdict should be sustained is the smae. Carlize v. Richards, 216 So.2d 422 (Miss.1968); Hawkins v. Hillman, 245 Miss. 385, 149 So.2d 17 (1963), and the cases cited therein.

These rules probably emanate from a common law 'demurrer to the evidence,' but whatever their source, they have been implemented by this Court, doubtless to preserve the plaintiff's statutory right to two new jury trials if there be a conflict of fact for resolution. (Miss.Code Ann. § 11-7-213 (1972)). This necessitates a different result when a motion for a directed verdict, a peremptory instruction or a motion for a judgment n.o.v. is sustained from that of a motion for a new trial because the verdict is against the preponderance of the evidence. The former denies a new trial. The latter permits it.

In Mobile & O.R. Co. v. Johnson, 165 Miss. 397, 141 So. 581 (1932), it is stated:

. . . the rule is that, laying aside and leaving out of view the testimony in behalf of defendant, if the evidence in behalf of the plaintiff is sufficient in law to establish the legal right of the plaintiff in issue and is not inconsistent with the admitted physical facts or with natural laws or common knowledge, and, so viewed, the plaintiff's testimony taken alone is such that reasonable men, acting reasonably, could reasonably believe that the testimony and prudently act upon it, then a peremptory instruction for the defendant must not be given. When, however, all the testimony has been heard and all the arguments delivered and the verdict returned, if, upon a completed view of the entire case, the trial judge is then of the opinion that the verdict is against the overwhelming weight, or clearly against the great preponderance, of the evidence, his duty is, upon a motion for a new trial, to set aside the verdict and grant a new trial. In the latter respect, and to the extent mentioned, the trial judge has a responsible part in the final determination of the issue upon the facts, and his duty of superintendence in that regard is one of his constitutional obligations. 165 Miss. at 403, 141 So. at 582.

See also Gunn v. Grice, 204 So.2d 177 (Miss.1967); Newton v. Homochitto Lbr. Co., 162 Miss. 20, 138 So. 564 (1932); and Columbus & G. Ry. Co. v. Buford, 150 Miss. 832, 116 So. 817 (1928).

The motions, which preclude a new trial if sustained, of course arise at different stages of a case: the motion for a directed verdict at the conclusion of the plaintiff's evidence, a request for a peremptory instruction at the conclusion of the plaintiff's and defendant's case and a motion for a judgment n.o.v. upon...

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