Rex Nitrogen & Gas Co. v. Hill

• Decision Date: 25 February 1952
• Docket Number: No. 38223,38223
• Citation: 57 So.2d 173,213 Miss. 698
• Parties: REX NITROGEN & GAS CO. v. HILL.
• Court: Mississippi Supreme Court

Page 173

57 So.2d 173

213 Miss. 698

REX NITROGEN & GAS CO. v. HILL.

No. 38223.

Supreme Court of Mississippi.

Feb. 25, 1952.

Forrest G. Cooper, Indianola, for appellant.

Smith & Jones, Cleveland, for appellee.

ARRINGTON, Justice.

Mrs. Jeanette P. Hill, appellee and plaintiff in the court below, sued the appellant, Rex Nitrogen and Gas Company, in the Circuit Court of Washington County and obtained a judgment in the amount of $2,416.66, from which judgment the appellant appeals to this Court.

The facts briefly stated are as follows: Mrs. Hill was the owner of a farm and mercantile business known as the 'Triumph Farms' at Merigold, Mississippi. On July 26, 1948, the appellee entered into a contract with the appellant, Rex Nitrogen and Gas Company, for the purchase of 20,000 gallons of anhydrous ammonia (liquid fertilizer, same to be delivered at Leland, at the plant location, Rexburg, Miss.). Under the terms of the contract, the appellee was required to and did deposit one-third of the contract price, which was $2,000, the balance to become due February 1, 1949. On December 9, 1948, the appellant, by its president, Mr. J. A. Finklea, advised the appellee that the manufacturers of anhydrous ammonia had increased their price in the amount of 3.75 cents per gallon, which increase amounted to $15 per ton (400 gallons). In this letter, it was stated 'if you are unwilling to pay this increase, you may cancel your order and we will refund your deposit'. Upon receipt of this letter, Mr. Hill, the husband of appellee and the manager of the 'Triumph Farms', called Mr. Finklea, president of appellant company, over the telephone and told him that the price was too high but that if he would ship the 20,000 gallons of ammonia to Merigold in carload lots, he would pay the increase. According to Mr. Hill's testimony, Mr Finklea agreed to do this, and the appellee paid one-third of the increase in price of the ammonia, which was an additional sum of $416.66, thus making the total amount deposited by the appellee the sum of $2,416.66. The appellant did not ship the ammonia to Merigold and denied that he was under any obligation to do so as no subsequent oral agreement was made with Hill and that under the original written contract, it was the duty of the appellee to obtain the ammonia at the Rexburg plant. The appellee, not getting any of the fertilizer, called on the appellant to refund her deposit of $2,416.66. This demand was made prior to November 1, 1949. On October 26, 1949, the appellant wrote the appellee a letter advising that it had sold its plant and that since the appellee had not called for the ammonia under the original contract, he was entitled to a refund on his deposit, as it was entitled to its profit on the fertilizer, together with other expenses incurred therein, and tendered to the appellee the sum of $946.66, which was the balance after deducting its profit and expense.

The appellant assigns as error the granting of the following instruction to the appellee: 'The court further charges the jury for the plaintiff that if you believe from a preponderance of the evidence in this case that subsequent to the making of the written contract introduced in evidence in this case and made by and between the parties hereto on the 26th day of June, 1948, said parties by oral agreement modified said original contract by which said modification the defendant agreed that the anhydrous ammonia which was purchased from it by plaintiff was to be shipped in car lots to plaintiff directly from the factory to her place of business at Merigold, Mississippi, and further agreed that if for any reason it should be found to be impracticable for...