Leon Michael Co. v. O'Connell-Myers Co. , 115 Miss. 720 ( 1917 )

Ethridge, J.,

delivered the opinion of the court.

Leon Michael Company, through their agent, sold the 0’Connell-Myers Company a bill, of lace and embroidery, and on receipt of the order sent the 0’Connell-Myers Company an ácknowledgment of the receipt thereof, with a statement of the approximated amount of the order, which amounted, according to estimate, to one hundred and ninety-one dollars, but on invoice amounted to one hundred and eighty-nine dollars and thirty-seven cents. Afterwards the goods were shipped to 0’Connell-Myers Company at Sumrall, Miss., who took the goods and found that there was quite a large quantity of the lace, and wrote the Leon Michael Company that there was more lace than they anticipated and more than they could handle within a reasonable time, and that they would not accept the goods. To this notice the Leon Michael Company replied that they had looked up the original order and found that every item was shipped as ordered, and that they would not cancel the order. The 0’Connell-Myers Company refused to pay, and shipped the portion of the goods hack to the Leon Michael Company, who declined to receive such shipment and who' brought suit upon the original order. This suit was appealed to the circuit court, and there an understanding was reached by the attorneys of Leon Michael Company and a member of the 0 ’Connell-Myers Company, and a judgment of dismissal, equivalent to a nonsuit, was taken.

The attorneys fór the áppellant notified the appellant of the settlement, and that by the terms of the settlement the appellee was to pay sixty-seven dollars on account, and was to be allowed until the following May to dispose of the remainder. The goods were thereupon returned to 0’Connell-Myers Company, who wrote the Michael Company that their understanding was they were to have until May to settle for the goods, and that all goods remaining unsold at that time would be returned at invoice price. Michael Company refused to accede to this arrangement, and 0 ’Connell-Myers Company refused to receive the goods, but returned them, and the Leon Michael Company refused to receive them, and after the date in May passed instituted this suit.

A member of the 0 ’Connell-Myers Company, as a defense to this suit, made affidavit that said 0’Connell-Myers Company is in no manner or form liable to plaintiff for said amount, or any part thereof. This case also reached the circuit court, the suit, being on the original invoice price, less the credit of sixty-seven dollars, and upon the hearing the foregoing facts appeared in evidence, ■ the appellant alone introducing evidence in said trial, and said facts appearing in its testimony. Thereupon, on motion of appellee, the circuit judge granted a peremptory instruction to find for the appellee. We are advised that this ruling was made on the theory that the original contract was superseded by a new agreement, and that there was, in legal effect, no new agreement, because the minds of the parties did not meet in the second contract. We think the learned court below was in error. There was a dispute as to what the new agreement was, but there is no dispute that the parties did not agree on one theory or the other, and it was a question fbr the jury to decide which contention was the real agreement. In any view of the case, the appellee did not undertake to carry out the agreement, according to their contention, and we think the peremptory instruction was error.

Reversed and remanded.