Stribling Bros. Machinery Co. v. Girod Co., 41546

• Decision Date: 07 November 1960
• Docket Number: No. 41546,41546
• Citation: 239 Miss. 488,124 So.2d 289
• Parties: STRIBLING BROTHERS MACHINERY COMPANY et al. v. GIROD COMPANY and Fred Girod et al. (Consolidated Cases.)
• Court: Mississippi Supreme Court

Page 289

124 So.2d 289

239 Miss. 488

STRIBLING BROTHERS MACHINERY COMPANY et al. v. GIROD COMPANY and Fred Girod et al. (Consolidated Cases.)

No. 41546.

Supreme Court of Mississippi.

Nov. 7, 1960.

Dent, Ward, Martin & Terry, Vicksburg, for appellants.

Prewitt & Bullard, Vicksburg, for appellees.

ETHRIDGE, Justice.

This cause involves two appeals from two separate judgments of the Circuit Court of Warren County. The cases were consolidated for trial and for appeal by agreement of the parties.

The Girod Company and Fred Girod v. Stribling Brothers Corporation

Stribling Brothers Corporation (called Stribling Corporation) sued the Girod Company (called Girod) and Fred Girod on a promissory note executed by defendants, dated November 21, 1955. There was no counterclaim. After a trial, the jury returned a verdict for plaintiff for the amount owing, $1,619.78. The Girod Company and Fred Girod took a direct appeal.

Appellants' contention, that there was no consideration for the note, is based on the following facts: Girod is engaged in the business of producing and marketing sand and gravel, obtained principally from the Mississippi River. Stribling Brothers Machinery Company (called Stribling Machinery), domiciled in Jackson, is a corporation selling heavy machinery, principally of Caterpillar manufacture. In 1952 Girod purchased from Stribling Machinery a Caterpillar Electric Set and in 1953 a Caterpillar Marine Engine. Prior to 1955, Girod incurred an open account obligation to Stribling Machinery for parts on the electric, set and marine engine, and on other equipment owned by it. The original purchase-money notes for these two items of equipment were assigned to a bank, and were paid by Giord. However, the parts account on this and other equipment remained.

In 1954 the Greenwood branch of Stribling Machinery was set up as a separate corporation, named Stribling Brothers Corporation. The assets of Stribling Machinery were divided between the two corporations, and a portion of the parts account of Girod was assigned by Stribling Machinery to the new corporation, Stribling Brothers Corporation, as an account receivable. In February 1955 Stribling Machinery was demanding payment of the entire parts account. Girod contended that the electric set and marine engine were defective, and he owed nothing because the parts account consisted of parts used to repair this Caterpillar equipment. In February 1955 the Girod Company executed a promissory note, and the parts account was credited withits amount. The company did not pay the note, and later in 1955 Girod discussed the matter with N. G. Augustus, Jr., Secretary of Stribling Machinery, asking for further extension of time. Stribling Machinery had placed the note in the hands of its Vicksburg attorneys for collection. Girod agreed to pay a certain amount within ten days, and the remainder in payments over a year, so the note was rewritten and the obligation was reshaped. The reworking of the obligation was conditioned upon Girod individually endorsing the notes of the Girod Company, which he did. That portion of the parts account which had been assigned to plaintiff was evidenced by the note sued on here.

Appellants, the Girod Company and Fred Girod, contend that there was no consideration for the note of February 1955, and for the renewal note sued on in this action, dated November 21, 1955, because there was no evidence that the parts account owed by appellants was credited with the amount of the note. However, this contention is without merit. Augustus, agent for Stribling Brothers Corporation, as well as Stribling Machinery, testified about the transaction, and a credit to the Girod parts account with the amount of the note at the time of the execution of the original note. Fred Girod admitted its execution and his signature as an endorser. Also, appellants obtained two instructions submitting to the jury the question of whether the evidence reflected a consideration for execution of the note. The jury by its verdict for Stribling Corporation found against appellants' contention in this respect.

Moreover, the introduction of the note raised a presumption of consideration. Miss.Code 1942, Sec. 65. A plea of want of consideration is an affirmative defense, with the burden of proof upon the defendant. Code Sec. 69. Milstead v. Maples, 1938, 180 Miss. 476, 177 So. 790. A note given in liquidation of a prior note is a sufficient consideration. Code Sec. 66. Under all of these circumstances, there was ample evidence to warrant the jury's finding, that there was a consideration for the note and appellant had been given credit on the parts account for it. Hence the judgment for Stribling Brothers Corporation is affirmed.

Stribling Brothers Machinery Company v. The Girod Company and Fred Girod

Stribling Brothers Machinery Company filed suit against the Girod Company and Fred Girod on a promissory note executed by defendants, dated November 21, 1955, in the principal amount of $1,778.76. It later developed that, with credit for a payment, only $457.00 plus interest in unpaid on this note. The defendants denied the indebtedness and filed a counterclaim, in which they asserted substantial damages against Stribling Machinery for breach of both an express and implied warranty with reference to the Caterpillar Electric Set and Marine Engine. The counterclaim averred that Girod Company relied upon the promises of Stribling Machinery's agent, Watkins, that this equipment would perform the job, cross-defendant had a superior knowledge and information about these items, and cross-defendant's representations induced Girod to purchase them; that the marine engine and the electric set were defective and wholly unsuitable for the purposes recommended by cross-defendant, and as a result Giord expended large sums of money in attempting to repair them, and lost certain profits and rentals. Stribling Machinery's answer denied the averments in the counterclaim, and alleged that its warranty was limited to that contained in the customer's order.

The counterclaim contained two counts: One pertained to damages for repairs and lost profits arising from the electric set, and the second the marine engine. The circuit court submitted the issues on the declaration and counterclaim to a jury, which found for the defendant and counterclaimant, 'on count 1 or 2 or both whichever the case may be, in the amount of $3,299.78.' Judgment was entered against Stribling Machinery for that amount, from which this appeal was taken.

The trial court erred in submitting to the jury any issues stemming from count 1 of the counterclaim, which pertained to the electric set purchased by Girod on February 12, 1952. The Girod Company, by Fred Girod, signed a customer's order for the electric set. That order, which was later accepted and the equipment shipped, received and used by Girod, contained these provisions with reference to a warranty:

'5. The seller shall not be held liable or responsible for any damages, whether on account of personal injuries, or otherwise, suffered or sustained in the operation of said machinery, nor for any implied warranties, nor for any damages resulting to the undersigned by reason of any delays or any alleged failure of said machinery to operate, and the liability of said seller shall be limited to the following warranty:

'6. Prices quoted are the current prices. Invoicing of all products shall be at price prevailing at time of shipment.

'Warranty:

'The manufacturer warrants the above listed machinery manufactured by it for ___ months from date of shipment, this warranty being limited to the furnishing at its Factory of such parts as shall under normal use and service appear to it to have been defective in material or workmanship. This warranty is limited to the shipment to the purchaser without charge, except for transportation of the part or parts intended to replace the part or parts claimed to have been defective, and which upon their return to said company at its Factory for inspection it shall have determined were defective, and provided transportation charges for the parts so returned have been prepaid.

'No warranty of any machinery is made or authorized to be made by the seller other than the above specified. The seller makes no warranty whatever in regard to trade accessories, such being subject to the warranty of their respective manufacturers,...