Hercules Mfg. Co. v. Wallace , 124 Miss. 27 ( 1920 )

Ethridge, J.,

delivered the opinion of the court.

The appellant sued the appellee on a contract written in the following words:

“Mar. 9, 1918.

“M........... (hereinafter designated the dealer).

“Please furnish the following generator and appliance f. o. b. Chattanooga, Tenn., to be delivered ...... hereinafter designated the purchaser, one Hercules generator of 100 pounds carbide capacity..... dozen......burners......%ft.......4% ft.......% ......9.1 ft.

In what part of house does Quantity. Number. Lights. Length. Finish. Fixture Co.

1003 2' 6" O C With gooseneck holders

149 With veneered holders

965 2' 6"

110 1' 6" Block

1668 2' 6" O C

165 2' 6" With movered holders

22 157 A igniters

1 can of carbide ..............................._......■-.........

“This order is not subject to cancellation.

“Pipe residence, store, garage and stable building for gas, leaving openings for fixtures in places specified, assemble and hang above fixtures and install and place generator in operation. Run pipings underground to generator approximately five hundred and forty-three feet, also to all approximately ...... feet. Purchaser agrees to haul material and workmen from railroad station, board workmen who install apparatus and equipment, furnish helper and furnish platform or suitable foundation for generator or if a pit generator purchaser agrees to have hole dug for same.

“For which I, the purchaser, agree to pay ($425) four hundred and twenty-five dollars. Terms: Less three per cent, for cash $203.75 received balance when generator is installed.

“Warranty: It is agreed that in accepting this order the dealer guarantees that the generator furnished is made by the Hercules Manufacturing Company, of Chattanooga, Tenn., and it is a thoroughly durable galvanized generator, of good workmanship and material, automatic in action.

“It is further agreed that in accepting this order the dealer guarantees that the fixtures and other accessories furnished shall be of good material and workmanship and the piping, fixtures and generator shall be installed in a good workmanship manner, free from leaks.

“The generator and other articles shall remain the property of the dealer until said generator and other articles shall have been paid in full; and in. event of default in any payment ...... agree to surrender possession of said generator or other articles mentioned above immediately to the dealer, or possession may be regained by the dealer in the same manner as provided by law for the enforcement of any conditional sale contract.

"Upon the acceptance by the dealer in the space beloiw, this order becomes a contract between the dealer and the purchaser, it being understood that it covers all of the agreement between them and cannot be added to or modified except by agreements in writing.

“Accepted this ...... day of........, 191..

“......■................. Dealer.

"By ....................

“Salesman ....................

( “J. H. Wallace, Purchaser.

“Coldwater, Miss., Shipping Point.

“Independence, Miss., Post Office.”

It took in part payment the check for two hundred three dollars and seventy-five cents dated the same day, which check was in due course presented for payment and was not paid, but protested. The defendant pleaded that the contract was fraudulently procured and that it was not indebted to the plaintiff in any sum whatever. The -plaintiff offered to introduce in evidence the contract, which was objected to because the form for acceptance was not signed by the seller and for that reason it was contended tlie contract never became effective. The plaintiff introduced C. L. Darnell, who testified that he owned the corporation, the plaintiff, that is, that he was the sole owner of all the stock and that he took the contract himself and accepted the contract by consenting to it and shipped the lighting plant before receiving the letter seeking to cancel it; that the sale was made on Saturday, and the shipment made on the following Monday; that on receipt of the defendant’s letter seeking to countermand he notified the defendant he could not countermand it. There was a conflict in the testimony between the witness for the plaintiff and for the defendant as to what took place between Darnell and Wallace; Darnell contending that the defendant desired the lighting plant shipped at once, and Wallace contending that Dhrnell represented that it would take about two weeks before the goods arrived, during which time he could countermand. The court refused to admit the contract in evidence and rendered a judgment for the defendant. From which judgment this appeal is prosecuted.

We think the court erred in excluding the evidence from the jury that the order of Wallace was accepted when the lighting plant was shipped or placed in the car for shipment at Chattanooga. If this lighting plant was actually loaded into the cars by the Hercules Manufacturing Company before the receipt of the order or letter seeking to cancel it, the defendant had no right to cancel, provided there was no understanding at the time of the taking of the order that Wallace had an agreement with Darnell which authorized him to" cancel it before the delivery. The check given shows on its face that it was for the purchase of this lighting plant and was itself sufficient to satisfy the statute of frauds. We do not now decide whether the acceptance of the order by delivery of the lighting plant, without the signature of the Hercules Manufacturing Company to the contract, would exclude the evidence of the defendant as to an oral understanding. But it was error to refuse to admit the evidence offered by the plaintiff. Reversed and remanded.