Opinion
No. 37272.
December 31, 1949.
1. Limitation of actions — contract of sale provable by writing — six year statute applicable.
A written order, containing an accurate description of the goods purchased, the price thereof and the terms of sale with stipulations therein that all the terms of the contract were incorporated in the written order and that it was not subject to countermand, was signed by the purchaser and by the sales agent of the seller, was accepted by the seller and the goods were shipped to, and received by, the purchaser: Held, in an action by the seller to recover the contract price, that the six year, and not the three year, statute of limitations applied. Sec. 722 Code 1942.
Headnote as approved by Hall, J.
APPEAL from the circuit court of Forrest County; F.B. COLLINS, Judge.
T.J. Wills, for appellant.
The writing of the debtor, and we most respectfully urge, which will take the account out of the three year statute and make the six year statute apply, is where the debtor acknowledged an existing indebtedness with a promise to pay. If the writing is an order such that action by the creditor must be had before the debt comes into existence, there is no promise to pay, but only an offer; offer to enter into a contract upon which a promise to pay is implied. The indebtedness in which the writing of the debtors constitutes a debt must be in existence at the time it is acknowledged in writing by the debtor.
Let us repeat, if an obligation to pay is bottomed on an implied contract it falls within the three year statute of limitations, if however, the contract is completed before acknowledgment by the debtor is given and there is a promise to pay, the six year statute controls. Foote v. Farmer, 14 So. 445; Washington v. Soria, 19 So. 485; Buntyn v. National Mutual Building Loan Ass'n., 38 So. 345; Pate Lumber Company v. Southern Railroad Company, 76 So. 481; Hembree v. Johnson, 80 So. 554; Warren Godwin Lumber Company v. Lumber Mineral Company, 82 So. 275; Attala Warehouse and Compress Company v. Alexander Mercantile Company, 102 So. 779; Champion Chemical Company v. Hank, 165 So. 807.
The record in this case shows without dispute, that after trying large quantities of the Scalenemy, the Dixie Pine Products Company, a corporation, found that it would not do the work.
Orders were taken at the same time with different datings. Appellant asked for a cancellation of the contract and rescinded the sale and offered to return the goods. There is no principle of law better settled than that the buyer has the right to cancel. See Black on Rescission and Cancellation, paragraph 184.
Heidelberg Roberts, for appellee.
The contract, on which this action was based, is one probable by writing, and, therefore, the six year statute of limitations applied, and the action was not barred. Secs. 722, 729, Code 1942; Champion Chemical Co. v. Hank, 174 Miss. 732, 165 So. 809 (1936); Washington v. Soria, 73 Miss. 665, 19 So. 485 (1895); Fowlkes v. Lea, 84 Miss. 509, 36 So. 1036 (1904); City of Hattiesburg v. Cobb Bros. Constr. Co., 174 Miss. 20, 163 So. 676 (1935); Foote v. Farmer, 71 Miss. 148, 14 So. 445 (1893); Buntyn v. National Mutual Building Loan Ass'n., 86 Miss. 454, 38 So. 345 (1905); Pate Lumber Co. v. Southern Railway Co., 115 Miss. 402, 76 So. 481 (1917); Hembree v. Johnson, 119 Miss. 204, 80 So. 554 (1919); Warren Godwin Lumber Co. v. Lumber Mineral Company, 120 Miss. 346, 82 So. 257 (1919); Attala Warehouse and Compress Co. v. Alexander Mercantile Co., 139 Miss. 615, 102 So. 779 (1925); Rather v. Moore, 179 Miss. 78, 173 So. 664 (1937); Federal Land Bank v. Collins, 156 Miss. 893, 127 So. 570 (1930).
The order for the chemical compound became a binding contract of sale since it was not cancelled or countermanded prior to acceptance. 16 Am. Jur. Sales, sec. 56; Oklahoma Vinegar Company v. Carter, 116 Ga. 140, 42 S.E. 378, 59 L.R.A. 122, 94 Am. St. Rep. 112 (1902); Planters Oil Mill Mfg. Co. v. Falls, 29 So. 786 (Miss. 1901); Sethness Company v. Homeade Bottling Co., 111 Miss. 151, 71 So. 308 (1916); Hercules Mfg. Co. v. Wallace, 124 Miss. 27, 86 So. 706 (1920); Powell v. Aldridge, 202 Miss. 648, 32 So.2d 146 (1947).
Appellant is not relieved of its liability under the contract on the grounds of rescission. 46 Am. Jur. Sales, secs. 309, 356, 359, 362-4, 366; Black, Rescission and Cancellation, par. 184.
Alleged errors committed by county court, not complained of in the circuit court, cannot be raised for the first time in the Supreme Court. Eaton v. Hattiesburg Auto Sales Co., 151 Miss. 211, 117 So. 534 (1928); Merrill Eng. Co. v. Bolton and Carr, 119 So. 354 (Miss. 1929); Reynolds v. Century Life Ins. Co., 155 Miss. 890, 125 So. 99 (1929); State v. Carraway, 160 Miss. 263, 134 So. 846 (1931); Richardson v. Flowers, 194 Miss. 105, 11 So.2d 808 (1943).
Appellee recovered a judgment against appellant for a shipment of a cleansing compound for steam boilers known by the trade-name of Scalenemy. This shipment was made pursuant to a written order signed by appellant acting by its president and also signed by appellee's saleman, which gave an accurate description of the goods purchased, the price thereof, and the terms of sale. The order stipulated that all special terms or agreements between the buyer and seller should be incorporated on the original and duplicate of the order to be recognized, and further that the order was not subject to countermand. The goods were shipped pursuant to the terms of the order and were received and accepted by appellant from the carrier on May 22, 1944. Suit was not filed until February 9, 1948, which, it will be noted, is more than three years and less than six years after delivery of the goods.
(Hn 1) It is first contended by appellant that the claim is barred by the three-year statute of limitations, Section 729 of the Mississippi Code of 1942, which provides that "Actions on an open account or stated account not acknowledged in writing, signed by the debtor, and on any unwritten contract, express or implied, shall be commenced within three years next after the cause of such action accrued, and not after." The written order in this case is substantially the same as that which was involved in the case of Champion Chemical Co. v. Hank, 174 Miss. 732, 165 So. 807, and under that authority the cause of action is controlled by the six-year statute of limitations, Section 722, Code of 1942. The first assignment is therefore without merit.
It is next contended by appellant that the order was cancelled or rescinded because the goods were not satisfactory and did not produce the desired results. This issue was submitted to the jury under conflicting testimony, and the jury found against appellant. Considerable correspondence was exchanged between the parties beginning in September 1944 and continuing into 1947. Several letters had been written before April 27, 1945, when appellant for the first time advanced the contention that the product was unsatisfactory. Prior to the order here sued upon appellant had bought several orders of the same commodity aggregating about 5,000 pounds, and after using appellee's product for several months appellant placed the order now in question. These admitted facts coupled with appellee's evidence that there had been no attempted cancellation of the order, are sufficient to support the finding of the jury, and the judgment of the lower court is accordingly affirmed.
Affirmed.