Morrimac Veneer Co. v. McCalip

92 So. 817, 129 Miss. 671

• Court: Mississippi Supreme Court
• Decided: March 15, 1922
• Docket: No. 22381
• Status: Published

Opinion

Ethridge, J.,

delivered the opinion of the- court.

The appellee ivas plaintiff below, and sued the appellant for damages for a breach of contract involving the sale of certain timber to the appellant by the appellee. The contract of sale provided for a sale of one million feet, more or less, of certain gum, maple, beach, sycamore, and poplar timber upon certain described lands, at the sum of twenty-eight dollars per thousand feet when cut and loaded on cars at Monticello, Miss., payment to be made twice each month, on the 1st and loth, with the provision that the appellant should retain four dollars and forty cents per thousand feet to pay one Barnett for permitting said plaintiff to cut and remove the timber. The contract also provided for the sale of all ash timber on said lands at the sum of thirty dollars per thousand feet f. o. b. cars Monticello, Miss., with seven dollars per thousand feet to be .paid to Barnett for permitting the plaintiff to cut and remove said timber. The declaration alleged that the plaintiff entered upon said contract and cut and hauled to Monticello logs, some of which were delivered to defendant, and that the plaintiff had cut and loaded on the ramps of the railroad ready for inspection something more than one-half million feet of timber, but which the defendant refused to inspect and accept as provided for in the contract, and that the defendant breached its contract and notified the railroad company that it would not receive any logs loaded by the plaintiff for it or for any other person, and, further, that it was necessary after the breach of the said contract to sell the said timber to other persons; that the plaintiff sold fourteen thousand feet of said lumber to the E. L. Hendricks Lumber Company at twenty dollars per thousand feet, entailing a loss of eight dollars per thousand feet, or one hundred and twelve dollars, and was forced to sell to the. Quaker Oats Company five hundred thousand feet of said timber at twenty-two dollars and fifty cents per thousand feet, entailing a loss of five dollars and fifty cents per thousand feet, totaling two thousand, seven hundred and fifty dollars, making a total loss to the plaintiff of two thousand, eight hundred and sixty-two dollars on the log's thus cut and ready to be delivered to the defendant. It was further alleged that there was uncut at least five hundred thousand feet of said timber embraced in said contract, and that, by reason of the breach of said contract, the plaintiff was damaged as to this item in the sum of fourteen dollars per thousand feet, or a total of seven thousand dollars for this item, and demanded judgment for nine thousand, eight hundred and sixty-two dollars, as total damages for said breach of contract.

The defendant filed a motion for a change of venue, alleging that it was a resident citizen of the first judicial district of Hinds county, Miss., having its domicile and place of business within said distinct and county, but that it was a Mississippi corporation, and its only place of business and residence was in the first judicial district of Hinds county, and had been since the date of its incorporation, and that at no time had the defendant had an office in Lawrence county, Miss., or an officer or agent within said county of Lawrence, which motion was verified by its agent, which motion was by the court overruled, and exception taken thereto. The defendant thereupon pleaded the general issue and a special plea, in which special plea is was- alleged that, after making the written contract sued upon and its partial performance, the plaintiff and defendant mutually entered into an agreement to annul and terminate said contract, and plaintiff agreed to and with the defendant, in consideration of the defendant’s yielding its right to have delivered to it any more of the timber mentioned in the contract not theretofore cut and delivered, that the plaintiff would and did release and discharge the defendant from all obligation and liability, and that previous to the said- agreement it had received no timber on said contract, except that which had been fully paid for, and that said contract was wholly null and vacated, upon which special plea issue was taken in short by consent.

The plaintiff testified to the allegations of his declaration, and that he had cut and had had hauled to the ramps at Monticello the logs as above stated ready for delivery, and that he called upon the defendant to send its inspector to measure and inspect the said logs, and that the defendant refused to take said logs, and notified the plaintiff that it would not take any more, and also notified the railroad company that it would not receive any shipment consigned to it by the plaintiff; that he loaded said logs and was compelled to sell them as above stated, and that his losses on the said logs so cut and loaded was as above set out. ITe also testified that he was ready-to cut the other logs, and also testified as to the amount it would cost him to cut and load them on the cars, and testified as to his estimate of the timber uncut on the lands in question, and also produced estimates from other timber estimators as to the number of feet uncut. He also testified that he had not rescinded said contract nor agreed that it should be rescinded and annulled. He testified further that he had conditionally offered to release the said contract on condition that he be paid one thousand, five hundred dollars, to be divided between him and the defendant if the defendant would buy other logs from him. He further testified that, after the breach of the contract, he made a contract with other parties to cut and saw the timber, but that he made no money on said contract, and that he was compelled to do so to keep his teams employed.

The question as to whether the contract was rescinded' was submitted to the jury on conflicting evidence on the part of the plaintiff and defendant, and the jury returned a verdict for two thousand, eight hundred and sixty-two dollars, and judgment was entered accordingly therefor, from which judgment this appeal is prosecuted.

A number of errors are assigned, the first of which is that the court erred in refusing to grant the change of venue. The statute bearing on venue is chapter 149, Laws of 1918, p. 154 (Hemingway’s Code Supp. 1921, section 486), which reads as follows:

Venue of Actions; in ivhat County, Generally. Chapter 166, Laws 1908. — Civil actions of which the circuit court has original jurisdiction shall be commenced in the comity in which the defendant or any. of them may be found, and if the defendant is a domestic corporation, in the conntv in which said corporation is domiciled, or in tire copnty . . . where the cause of action may occur or accrue except Where otherwise provided, and except actions of ejectment and actions of trespass on land, and actions for the statutory penalty for cutting and boxing trees and firing woods and actions for the actual value of trees cut which shall be brought in the county where the land, or some part thereof, is situated; but if the land be in two or more counties, and the defendant resides in either of them, the action shall be brought in the comity of his residence, and in such cases, process may be issued against the defendant to any other county. If a citizen resident in this state shall be sued in any action, not local, out of the county of his household and residence, the venue shall be changed, on his application, to the county of his household and residence.”

It is alleged that the court erred in refusing to grant a change of venue, because it is insisted that under this section, a corporation has a right under the last clause thereof to remove the cause to the county of its domicile or chief place of business, and that, if the statute is so construed as to deny it the right so to do, the statute is unconstitutional because of the denial of the equal protection of the law under the Fourteenth Amendment.

This court said in Plummer-Lewis Co. v. Francher, 111 Miss. 656, 71 So. 907, that a corporation had no right to change a venue under the statute as it then stood, which, so far as the last clause is concerned, is the same, but Avhich in the body did not provide, as the present act does, that suits against corporations might be brought where it did business or had an agent or where the cause of action accrued. In that ease a corporation domiciled in Hinds county was sued in Attala county, and this court held that the Attala court had no jurisdiction. The law as it at present stands was enacted to meet this decision. The concluding sentence of the section as it now stands reads as follows:

“If a citizen resident in this state shall be sued in any action, not local, out of the county of his household and residence, the venue shall be changed, on his application, to the county of his household and residence.”

It is clear that the legislature in this last sentence was .making provision for individuals, and not for corporations, and it was so understood and construed in Plummer-Lewis Co. v. Francher, supra, and the court below refused the change of venue because of the announcement in the above case.

It is insisted by the appellant that it comes within the purview of this clause, as it is legally a citizen resident of this state, and to deny it the same right to a change of venue as a natural person would render the statute unconstitutional, because obnoxious to the Fourteenth Amendment to the Constitution of the United States. The appellant has cited no authority so holding, and we do not understand that the Fourteenth Amendment prevents the state from providing different rules as to venue as to corporations and individuals.

In Smith v. L. & N. R. Co., 75 Ala. 449, the supreme court of that state draws a distinction between imposing a burden or conferring a property right and the form of proceeding in which shall be brought or maintained. The court in that opinion said:

“The sum of these provisions is, that no burden can be imposed on one class of persons, natural or artificial, which is not, in like conditions, imposed on all other classes. . . . In Richards’ Case, 74 Ala. 466, we sanctioned a different rule as to venue — the mere form of proceeding— when a corporation is sued. We reached this conclusion by force of the corporation’s mode of conducting its business; that its scene of active operations is ambulatory, and its domicil, if domicil it has, is essentially unlike, as its business transactions are unlike, those of a living, human being.”

In Hatcher v. Southern Ry. Co., 191 Ala. 634, 68 So. 55, the court reannounces this rule and reapproves the Richards Case, 74 Ala. 466.

In Allen v. Smith, 84 Ohio St. 283, 95 N. E. 829, Ann. Cas. 1912C, p. 611, the Ohio court reached a similar conclusion, and held that it was within the power of the Legislature to deal with the subject of venue. See, also, authorities cited in case note to Allen v. Smith, supra, in Ann. Cas. 1912C, p. 614 et seq.

In our opinion the statute is not objectionable as a denial off the equal protection of the law, because it in no manner affects the rights of the parties to the suit. If, however, we are mistaken about this, it would be harmless error in the present case, because there is not any suggestion of error in the record which would authorize us to infer that any prejudice resulted because of the denial of the motion.

A number of instructions are excepted to and assigned for error. It will be only necessary to notice one of them-in this opinion. Instruction No. 5 reads as follows:

“If the jury find for the plaintiff they may assess his damages at such amount as the evidence shoAVs that he has lost by reason of the breach of the contract and in computing- the amount of damages you should alioAV the plaintiff the difference in the price called for by the contract and' Avhat plaintiff sold the logs for to E. L. Hendricks Lumber Company and Quaker Oats Company, and also the profit which the evidence shows the plaintiff would have made on the timber yet uncut, not to exceed the amount sued for. and less any amount which the plaintiff may have made in sawing timber for Cook.”

It is insisted that this is erroneous because it authorizes the jury to award the plaintiff damages for profits which he would have made on timber yet uncut. It is said that this instruction wholly ignores the fact that the original contract did not obligate the Veneer company to purchase all of the timber on the land; that it was a contract to purchase a million feet, more or less, of certain kinds of timber, and did not obligate the veneer company to receive more than a million feet of the particular kind of timber designated. The contract called’ for the cutting of a million feet, more or less, of certain designated kinds of timber, and for all of the ash timber, but, if this be error, it would be harmless error, because the jury did not find anything for the plaintiff as to those uncut timbers. Its verdict was for exactly the amount of damage proven by the plaintiff of loss on the logs that were cut and loaded on the railroad cars and sold to other persons because of the defendant’s refusal to accept and pay for them. As we see it, there is no contradiction of the plaintiff’s evidence on this loss.

It is urged that the plaintiff is not entitled to the amount claimed because the contract authorizes the veneer company to pay out of the moneys under the contract four dollars and forty cents per thousand feet to Barnett, and that this should be deducted from the plaintiff’s testimony of loss. The appellant is not entitled to have this four dollars and forty cents per thousand feet deducted from the damages because the plaintiff either paid or was under obligation to pay the owner of the timber for the same irrespective of this provision of the contract which had been breached. The defendant’s obligation was to accept the timber and pay for it. It breached its contract according to the jury’s verdict and is responsible for the difference between the contract price and the .price at which the timber must be sold to reduce the plaintiff’s damages.

We think the other assignments of error without merit, and the judgment is affirmed.

Affirmed.