Stevens v. Stanley

• Decision Date: 15 April 1929
• Docket Number: 27821
• Court: Mississippi Supreme Court
• Parties: STEVENS v. STANLEY. [*]

121 So. 814

153 Miss. 801

STEVENS v. STANLEY. ^[*]

No. 27821

Supreme Court of Mississippi

April 15, 1929

Division B

Suggestion of Error overruled, June 10, 1929.

APPEAL from circuit court of Lowndes county, HON. J. I. STURDIVANT Judge.

Suit by F. L. Stevens against E. A. Stanley. Judgment for defendant and plaintiff appeals. Reversed and rendered.

Judgment reversed.

Loving & Loving, for appellant.

Frierson & Weaver and Lincoln & Lincoln, for appellee.

Argued orally by John W. Frierson, for appellee.

OPINION

ETHRIDGE, P.J.

The appellant, plaintiff in the court below, filed suit upon certain promissory notes executed by the appellee, E. A. Stanley, to the Brenard Manufacturing Company and payable to its order. The defense of the appellee was that the notes were fraudulently procured by the agent of the Brenard Manufacturing Company by making false representations as to the transaction involved for which the notes were given. The appellee also pleaded the general issue, and a special plea alleging that the appellant was not a purchaser of said notes for value without notice, but that he was aware of the transaction between the Brenard Manufacturing Company and the appellee, the defendant.

At the time of the making of the contract between the Brenard Manufacturing Company and the appellee, the notes were executed by the appellee to this company, and appear to have been originally attached to the contract and perforated for the purpose of detachment. This contract, among other things provides: "Upon your approval of this order and agency agreement deliver to me at your earliest convenience F. O. B. factory or distributing point, the articles mentioned below which I purchase on the terms and conditions herein set forth and no others, all of which I have read and found complete and satisfactory and in payment for which I herewith hand you my notes aggregating five hundred sixty-five dollars which you are to cancel and return to me if this sole and complete agreement is not approved by you."

The order then provided for certain phonographs, with radio attachment, giving the number required, name and style, and retail price thereof to the appellee; the total retail price being eight hundred forty-three dollars, and the net price thereof five hundred sixty-five dollars, which included services and privileges stated therein. The contract then provided for the establishing of an agency in the appellee for a period of three years. It was agreed also that the appellee would reorder and replace such machines as fast as they were sold out by him, and that the Brenard Manufacturing Company would accept his customers' notes or installment paper, when properly indorsed to it, applying sixty per cent of each cash payment against such reorder, and mailing the remaining forty per cent to the appellee; that if the appellee's sales, under this agreement, did not amount to five hundred sixty-five dollars, the Brenard Manufacturing Company would either pay the difference in cash to appellee, or repurchase the goods purchased thereunder--if returned in good order--from him, and that the company would send to appellee a bond in the sum of five hundred sixty-five dollars to protect him in the conditions of the contract; that to make such agreement binding regarding the sale of such machines, appellee would agree to furnish within thirty days from the date of contract, fifty names and addresses of persons who might be interested in the purchase of phonographs of such line, with whom the Brenard Manufacturing Company was to take up correspondence, itself, and the appellee each sixty days was to furnish from ten to twenty-five additional names and addresses of persons with whom the Brenard Manufacturing Company was to take up correspondence in the appellee's name in assisting him to establish the agency. The contract then provided: "In consideration of tying up territory and to protect you in your special methods and plans and in your expenditures this order cannot be countermanded or cancelled. No verbal or other agreement not appearing herein shall be binding upon you" (meaning the Brenard Manufacturing Company). This contract was signed as follows: "Stanley's Music & Book Store, by E. A. Stanley. (Authorized Buyer)," and was mailed to the Brenard Manufacturing Company at its address, Iowa City, Iowa. Accompanying this contract was a form signed by the agent who procured the contract, representing that no verbal representations had been made not contained in the contract; and, by its terms, this contract was to become effective by the approval and acceptance of the Brenard Manufacturing Company.

The proof on the...