Valley Mills, Division of Merchants Co. v. Southeastern Hatcheries of Miss., Inc., 42403
| Decision Date | 15 October 1962 |
| Docket Number | No. 42403,42403 |
| Citation | 245 Miss. 71,145 So.2d 698 |
| Parties | VALLEY MILLS, DIVISION OF the MERCHANTS COMPANY, Inc. v. SOUTHEASTERN HATCHERIES OF MISSISSIPPI, INC. |
| Court | Mississippi Supreme Court |
Harry R. Allen, Brunini, Everett, Grantham & Quin, Vicksburg, for appellant.
O. B. Triplett, Jr., Roy Noble Lee, Forest, for appellee.
Appellant, Valley Mills, brought suit in the Circuit Court of Scott County, Mississippi, against appellee, Southeastern Hatcheries of Mississippi, Inc., for an account alleged to be due and unpaid for eggs sold to the appellee under the terms of a written contract. Appellee pled that it had paid the account, after having deducted a set-off, alleged in a special plea to have been due them by appellant for 'baby chicks' purchased. Appellant denied the validity of the set-off upon the ground that the 'baby chicks' were not purchased by them but were purchased by certain 'flockowners' who were financed by Southeastern Hatcheries, as set out in the terms of a written memorandum-contract between appellee and appellant. The trial judge denied an application for a separate hearing in a special plea. The case was then tried upon its merits before a jury which resulted in a verdict and judgment in favor of appellee.
Valley Mills has appealed to this Court and complains that the trial court committed reversible error in permitting parol testimony to be presented to the jury upon the set-off claimed by appellee in a special plea, and that Valley Mills should have been granted a directed verdict.
This lawsuit is the result of a misunderstanding between the parties with reference to who should have been charged with a shipment of 'baby chicks' delivered by Southeastern Hatcheries to individuals in New Roads, Louisiana. Appellee claims that it sold the birds to Valley Mills with an understanding that the chickens would be paid for out of the purchase money for eggs they agreed to purchase from Valley Mills. Appellant, on the other hand, claims that Southeastern Hatcheries sold the shipment of chickens to 'flockowners' in Louisiana, and should look to them for payment.
Testimony introduced in the lower court reveals that Valley Mills is now, and has been for many years, engaged in the manufacture of chicken feed. In order to obtain an outlet or sale for its product, appellant has owned, and has financed others in owning, flocks of chickens. The eggs produced by these flocks were sold to hatcheries, and from the proceeds, the feed account and the purchase price of the birds were paid. The testimony in some respects was conflicting, but since the jury returned a verdict for defendant, it must have believed it favorable to them, from which it appears that sometime before the transaction here involved, appellant, Valley Mills, had purchased other flocks of chickens from Southeastern Hatcheries and appellant had sold eggs to appellee. Southeastern Hatcheries is engaged in the business of hatching chickens for the purpose of growing pullets, cockerels and hens for the market. In the Fall of 1957, before the parties entered into the written contract hereinafter quoted, one Lanis Yarbrough, a salesman for appellant, wanted to find an outlet for surplus hatching eggs because at that time Valley Mills 'had some flocks in production in and near New Roads, Louisiana.' He made a trip to see Mr. McAuliffe, Manager of Southeastern Hatcheries, for the purpose of discussing the possibility of selling them hatching eggs. Afterwards, he also discussed the matter with A. E. Welbourne, Sales Manager, who ordered a shipment of chickens to be delivered to New Roads, Louisiana. This shipment was charged to Valley Mills on the books of Southeastern Hatcheries November 4, 1957, a copy of the invoice showing the charge being sent to Valley Mills.
The parties then entered into the following written memorandum:
'December 6, 1957
'Mr. R. A. McAuliffe, Jr., Mgr.
'Southeastern Hatcheries Inc.
'Morton, Mississippi
'Dear Mr. McAuliffe:
'This letter will confirm our understanding of an egg marketing arrangement between Valley Mills of Vicksburg, Miss., and Southeastern Hatchery of Morton, Miss., on hatching eggs produced in the New Roads, (La.) area.
'This egg marketing arrangement will apply to Valley Mills fed and financed flocks now in production and similar flocks to be blood-tested for production in December 1957 as well as for flocks now being placed and which will be blood-tested on or before September 15, 1958.
'It is our understanding that Valley Mills will sell and Southeastern Hatchery will purchase all hatching eggs during the normal production period of each of the above flocks subject to the following terms:
'PRICE
'(a) The published North Georgia hatching egg price f. o. b. New Roads (for the first week in each month) shall be the price per dozen for all eggs received during that month except that a minimum of 65cents per dozen of eggs shall apply on any published prices below 65cents.
'Payments
'(c) Hatchery further agrees in addition to prices specified above to pay directly to Wagley Feed Mill of New Roads a fee of $1.00 per case for assembling and storing eggs and will transport them at the hatchery's expense and risk from the above designated collecting point.
'If this letter confirms your understanding of the terms as discussed, would you kindly acknowledge by signing the enclosed carbon copy and return it for our files.
'Very truly yours,
'Valley Mills
'A. E. Welbourne
'Sales Manager
'cc: E. C. Harriss
'M. H. Schroll
'Lanis Yarbrough
'This is to acknowledge our understanding and agreement to the terms as outlined above:
'SOUTHEASTERN HATCHERY
'BY R. A. McAuliffe, Jr./S/
'TITLE Manager'
(Emphasis Supplied.)
Appellant objected to the introduction of testimony on the trial of the case upon the ground that parol testimony was inadmissible to vary, change or contradict the terms of the written contract. It is argued on appeal that the part of the memorandum contract, supra, contained in 'Payments (a)' and '(b)', particularly the words italicized in the above-quoted letter to Mr. McAuliffe, Jr., prevented the introduction of parol evidence tending to show that Southeastern Hatcheries sold 'baby chicks' to Valley Mills. It is insisted that the expression 'Where pullet chicks financed by the hatchery remain unpaid on the producers account with the hatchery' and the words 'the flockowner's account', and 'each flockowner so financed', mean, in effect, that the defendant Southeastern Hatcheries extended credit to the 'flockowners' and not to Valley Mills.
Appellee, on the other hand, contends that the testimony was properly admitted because the memorandum-contract is not complete, is ambiguous, and the words and expressions objected to by appellant are not contractual, but identify persons and things and may be explained by parol testimony. It is apparent from the contract itself that it was the result of a conversation for the purpose of selling eggs, or making 'an egg marketing arrangement.' It is not a contract to sell 'baby chicks.' It is also apparent from the second paragraph of the memorandum-contract (letter) that the 'flocks' had been previously established and were 'now in production' and others would be established for production in December 1957. No price was mentioned in the memorandum-contract for the sale of the 'baby chicks', but an arrangement was made to provide for the method of paying for them out of the money due Valley Mills for eggs purchased by appellee. Moreover, the second paragraph of the memorandum-contract provides that the contract 'will apply to Valley Mills fed and financed flocks now in production and similar flocks to be blood-tested for production in December as well as for flocks now being placed * * *'. This part of the contract would indicate that all flocks placed before September 1957 would be considered 'similar' to Valley Mills 'fed and financed' flocks then in production.
We have come to the conclusion that the memorandum-contract...
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