Savell v. Schultz, Baujan & Co., 38260

• Decision Date: 25 February 1952
• Docket Number: No. 38260,38260
• Citation: 57 So.2d 151,213 Miss. 427
• Parties: SAVELL v. SCHULTZ, BAUJAN & CO.
• Court: Mississippi Supreme Court

Page 151

57 So.2d 151

213 Miss. 427

SAVELL v. SCHULTZ, BAUJAN & CO.

No. 38260.

Supreme Court of Mississippi.

Feb. 25, 1952.

Weir & Weir, Philadelphia, for appellant.

Witherspoon & Bourdeaux, Meridian, Kenneth I. Franks, Philadelphia, for appellee.

KYLE, Justice.

Schultz, Baujan and Company, a non-resident corporation, plaintiff, recovered a judgment in the Circuit Court of Neshoba County against V. W. Savell, individually and doing business as Savell's Hatchery, defendant, for the sum of $8,801.59, and from that judgment the defendant prosecutes this appeal. The action was based upon an open account alleged to be due and owing to the plaintiff by the defendant for chicken feed sold and delivered by the plaintiff to the defendant. Copies of the invoices were attached to the plaintiff's declaration and were made a part of the itemized statement of the account.

The appellant at the time the purchases were made was engaged in the business of operating a hatchery at Philadelphia, Mississippi. The appellee was an Illinois corporation engaged in the business of manufacturing and selling commercial feed. Its main offices were located at Beardstown, Illinois. The orders for the chicken feed shipped to the appellant were taken by Fred Gill, a traveling salesman for the appellee, who took orders which were transmitted by him to the home office and the feed was then shipped directly to the purchasers. Gill resided at Hattiesburg, Mississippi, and was paid a salary and expenses. He furnished his own automobile. Gill testified that he had authority only to solicit orders which he sent to the home office at Beardstown, Illinois, and that all orders were subject to acceptance or rejection by the manager at the home office. Gill's testimony was corroborated by the testimony of John White, the manager in charge of the home office.

The indebtedness for which judgment was rendered represented the unpaid balance due and owing by the appellant to the appellee for seven car loads of chicken feed shipped by the appellant and received by the appellee between July 19, 1949, and March 8, 1950, and fifty sacks of feed delivered to the appellant by the Morton Locker and Storage Company on January 26, 1950. The appellant admitted during the trial that he had received the feed, and there is no dispute as to the correctness of the account.

The appellant in his answer sought to recoup damages on account of the failure of the appellee to continue to ship additional feed to the appellant after the appellant had made default in the payment of the accounts due for the feed already shipped. But the court held that no competent proof had been made of any agreement on the part of the appellee to continue to ship additional feed after the appellant had failed to pay for the feed already shipped.

At the conclusion of the testimony the court granted to the plaintiff a peremptory instruction directing the jury to find for the plaintiff.

The appellant's attorneys argue two points on this appeal, which are as follows: (1) That plaintiff was not entitled to recover for the reason that no properly itemized statement of the account or proper bill of particulars was filed as an exhibit to plaintiff's declaration, as required by Section 1469, Code of 1942; and (2) that the court erred in overruling the defendant's motion to exclude the testimony offered by the plaintiff on the ground that the plaintiff was a foreign corporation and had not qualified to do business in the State of Mississippi, as required by Section 5319, Code of 1942.

There is no merit in the appellant's contention that the account attached to the plaintiff's declaration was not properly itemized. In addition to the invoice numbers, showing the dates and amounts of the several shipments, which were listed in the declaration, there were attached to the declaration copies of the invoices themselves, which showed the dates of the purchases, the kinds of goods shipped, the quantities and the prices. The account also showed all proper credits. The copies of the invoices attached and the credits shown on the account constituted a full bill of particulars within the meaning of Section 1469, Code of 1942; and there was also attached to the account an affidavit as to the correctness of the account. The account as stated was not subject to the objections pointed out by the Court in the cases of Pipes v. Norton, 47 Miss. 61, and W. M. Finck & Co. v. Brewer, 133 Miss. 9, 96 So. 402, which are cited by the appellant's attorneys in their brief.

As to the second point argued by the appellant's attorneys in their brief, it has been held in numerous decisions of this Court that a foreign trading corporation, having no office or place of business in this State, by employing a soliciting agent to obtain orders and send them to the home office, where they are filled by direct shipments to the purchasers, is not doing business in this State within the meaning of Section 5319, Code of 1942. Saxony Mills v. Wagner, 94 Miss. 233, 47 So. 899, 23 L.R.A.,N.S., 834, 136 Am.St.Rep. 575, 19 Ann.Cas. 199; City Sales Agency, Inc. v. Smith, 126 Miss. 202, 88 So. 625; Item Co., Limited v. Shipp, 140 Miss. 699, 106 So. 437; North American Mortgage Co. v. Hudson, 176 Miss. 266, 168 So. 79; Knower v. Baldwin, 195 Miss. 166, 15 So.2d 47; C.I.T. Corporation v. Stuart, 185 Miss. 140, 187 So. 204; Refrigeration Discount Corporation v. Turley, 189 Miss. 880, 198 So. 731; Morrison v. Guaranty Mortgage & Trust Co., 191 Miss. 207, 199 So. 110; Lee v. Memphis Pub. Co., 195 Miss. 264, 14 So.2d 351, 152 A.L.R. 1428.

In the case of Knower v. Baldwin, supra, Knower was a salesman for the Helbros Watch Company, Inc., a foreign...