APPEAL
from circuit court of Neshoba county, HON. C. E. JOHNSON
Special Judge.
Action by the W. T. Raleigh Company against H. L
Fortenberry and others. Action was dismissed as to the named
defendant before final judgment. From a judgment for
defendants, plaintiff appeals. Reversed, and remanded.
Appellant
the W. T. Raleigh Company, a corporation, sued appellees, H
L. Fortenberry and others, in the circuit court of Neshoba
county for the sum of two hundred seventy-nine dollars and
twenty cents with interest. Appellee Fortenberry was sued as
principal debtor, and the other appellees, E. S. Richardson
W. D. Germany, and H. D. Bassett, were sued as his
guarantors. Before final judgment, appellant dismissed as to
appellee Fortenberry, who was a nonresident and had not been
served with process, leaving the other appellees, his
guarantors, alone as defendants. Appellees pleaded the
statute of limitation of three years (section 3099, Code of
1906; section 2463, Hemingway's Code) as a defense, to
which plea appellant demurred, which demurrer the trial court
overruled, with leave to appellant to plead, which leave was
declined, and thereupon final judgment was entered
dismissing the cause at appellant's cost, from which
judgment appellant prosecutes this appeal.
We
believe a copy of the declaration in this cause, and of
Exhibits A and B thereto attached, would probably be a fairly
succinct statement of appellant's case. Leaving off the
caption to the declaration and the signatures to the
declaration and exhibits, they are as follows:
"Comes
the W. T. Raleigh Company, a corporation organized and doing
business under the laws of the state of Illinois, in the
county of Stephens, at the village of Freeport, and complains
that H. L. Fortenberry was a nonresident at the time of
filing this declaration, and has been since, and is now, and
E. S. Richardson, W. D. Germany, and H. D. Bassett are
resident citizens of Neshoba county, Miss., and for cause of
action sets out facts as follows, to-wit: For that whereas,
theretofore, to-wit, on the 13th day of
August, 1915, a contract was entered into between the W. T.
Raleigh Company, plaintiff, and H. L. Fortenberry, one of the
defendants herein named, in which the plaintiff agreed to
sell and deliver to the said H. L. Fortenberry goods, wares,
and merchandise, and the said H. L. Fortenberry agreed to pay
for the same, a copy of said contract being hereto attached
and marked Exhibit A, asked to be made a part hereof just as
if fully copied herein. And in consideration that the
plaintiff, at the special instance and request of the said H.
L. Fortenberry, would sell and deliver to H. L. Fortenberry
on credit all such goods as the said H. L. Fortenberry should
have occasion for and require of the plaintiff.
"Plaintiff
further alleges that E. S. Richardson, W. D. Germany, and H.
D. Bassett jointly and severally guaranteed unto the said W.
T. Raleigh Company unconditionally the full and complete
payment to said plaintiff of any and all indebtedness
incurred under the terms of the agreement entered into
between the said W. T. Raleigh Company and H. L. Fortenberry,
and to all of the terms, provisions, and agreement contained
in said instrument, they fully assented waiving acceptance of
the contract of guaranty and notice of any nature whatsoever,
and agreed that the written acknowledgment of the said H. L.
Fortenberry of the amount due on his account or that any
judgment duly rendered against him for the money due the
company, should in every and all respects bind and be
conclusive against them, a copy of said agreement being
hereto attached and marked Exhibit B and asked to be made
part hereof just as if fully copied herein.
"And
the plaintiff, the W. T. Raleigh Company, confiding in the
said promises of the defendants, H. L. Fortenberry, E. S.
Richardson, and W. D. Germany, and H. D. Bassett, did
afterwards, to-wit, on Angst 18, 1915, and on various other
dates thereafter, sell and deliver to the said H. L.
Fortenberry on credit six hundred eighty-two
dollars and seventy cents worth of goods, and that the said
plaintiff received on August 24, 1915, a remittance of twenty
dollars and twenty-five cents, and on various other dates
thereafter certain remittances aggregating the sum of four
hundred three dollars and fifty cents which left a balance
due April 1, 1916, of two hundred seventy-nine dollars and
twenty cents, with interest from said date, all of which will
more fully appear by reference to the sworn itemized account
hereto attached and marked Exhibit C and asked to be made a
part hereof just as if fully copied herein. The plaintiff
further alleges that the said H. L. Fortenberry and his
guarantors have often been requested to pay the said sum now
due, but, having failed and refused, still fail and refuse to
pay the same or any part thereof.
"The
plaintiff therefore brings his suit for the sum of two
hundred seventy-nine dollars and twenty cents with six per
cent. interest per annum since April 1, 1916, on said sum,
with cost to be taxed, and demands a judgment against the
said defendants, H. L. Fortenberry, E. S. Richardson, W. D.
Germany, and H. D. Bassett for the same."
Exhibit
A--Contract.
"(1)
This agreement made at the city of Freeport, in the state of
Illinois, by and between the W. T. Raleigh Company, an
Illinois corporation, party of the first part, hereinafter
called the company and H. L. Fortenberry of Noxapater, Route
1, in the state of Mississippi, party of the second part
hereinafter called the second party, witnesseth:
"(2)
That for, and in consideration of the promises and agreement
hereinafter contained to be kept and performed by the parties
hereto, the company, unless prevented by strikes, fires, or
other accidents caused beyond its control, agrees to sell and
deliver to the second party, f. o. b. cars at Freeport, Ill
or at its option at any other regular place of shipment, in
such reasonable quantities only as the second party may, from
time to time, desire to purchase all
medicines, extracts, and other products manufactured or sold
by it, such goods to be sold and delivered to the second
party at the usual and customary wholesale prices, such
prices to be shown by invoice of each shipment, and said
second party agrees to purchase such goods on the
above-prescribed terms and conditions, but the company may at
any time suspend such sales and shipments, if said second
party fails to make a payment as hereinafter provided, or for
any other omissions or neglect by said second party.
"(3)
The company will at its option also sell second party for
cash or partly or wholly on credit a wagon, such as said
second party may choose from current catalogues, circulars,
or other descriptions and charge said wagon to his account at
its customary cash or part cash and part credit price.
"(4)
The company further agrees to purchase from said second party
at any time during the term of or promptly after the
termination or expiration of this contract and at the
wholesale price then current such medicines, extracts, and
other products of its manufacture (wagons excepted) as the
second party may then have on hand and unsold, provided that
these products are in as good and salable condition when
received by the company as when purchased by said second
party, and pay or credit second party therefor on the return
of such products promptly by prepaid freight to Freeport,
Ill., or such other shipping points as may be designated by
the company in writing, and provided that said second party
shall pay to the company its actual expense of receiving,
inspecting, and overhauling all such goods.
"(5)
The second party promises and agrees to pay to the company at
its wholesale price f. o. b. cars at Freeport, Ill., or at
any other regular place of shipment as aforesaid for all
medicines, extracts, and other products sold to him from time
to time including any balance due on wagon, as hereinbefore
provided by ample cash weekly payments until this account
shall be fully paid, and that upon
determination of this contract at the option of either party
hereto or by its expiration of limitations hereinafter
provided said second party promises and agrees to pay in cash
the balance due said company for all medicines, extracts, and
other products and wagons sold and delivered to him as
hereinbefore provided, but the time of making such payments
or any or all of them may be extended by said company without
notice to the guaranty of this agreement and without
prejudice to any of the interest or rights of said company.
"(6)
It is further understood and agreed that, if said second
party shall pay his account in full, on or before the 15th
day of each month, he will be allowed a discount of three per
cent. from the usual and customary wholesale price.
"(7)
And it is further agreed between the parties hereto that this
contract is subject to acceptance at the home office of said
company at Freeport (state of Illinois, and shall be
construed as an Illinois contract), and unless previously
terminated at the opinion of either party upon written notice
shall expire by limitation on the 31st day of December, 1916.
"(8)
At the expiration of this contract, by limitation the company
agrees to make a new contract with said second party
provided he secures guarantors acceptable to the company
thereon, then will not require him to pay his account in full
at that time, provided the amount of his purchase and the
condition of his account are and have been satisfactory to
the company; and, if such new contract is made by the parties
hereto, said second party agrees to pay the company the...
