Opinion
No. 32956.
January 10, 1938.
CORPORATIONS.
Under statute requiring action against domestic corporation to be brought in county wherein it is domiciled or wherein cause of action occurs or accrues, suit by domestic corporation against foreign corporation, which, under statute of domestication, was to be treated as domiciled in county wherein it had place of business and agent for service of process, for breach of contract to buy piling, in procuring piling from subproducers in another state, thus preventing delivery by plaintiff, could not be brought in county of plaintiff's domicile, but only in county of defendant's domicile, since cause of action, if any, occurred or accrued without the state (Code 1930, section 495).
APPEAL from the circuit court of Forrest county. HON.W.J. PACK, Judge.
F.M. Morris, of Hattiesburg, for appellant.
The venue of suits against non-resident corporations in this state was definitely decided by this court in Sanford v. Dixie Construction Co., 157 Miss. 626, 128 So. 887. It was held that since the enactment of Chapter 90 of the Laws of 1928, section 11 thereof, practically the same as Section 4163 of the Code of 1930, that foreign corporations were to be regarded the same as domesticated corporations. The venue is set forth in Section 495 of the Code of 1930, as follows: "In the county in which said corporation is domiciled or in the county where the cause of action may accrue or occur."
This decision definitely and with an air of finality settled this principle of law so that a suit against the Manassa Timber Company could have been filed in Tippah County or at the place where the breach of contract accrued or occurred. This suit was brought in Forrest County, Mississippi, and appellant alleged that the cause of action accrued therein. This contract having been made in Mississippi, to be performed generally in Mississippi, is to be first governed by the laws of this State.
Shannon v. Georgia State Building Loan Assn., 78 Miss. 955, 30 So. 51; Greenlee v. Hardin, 157 Miss. 229, 127 So. 777; Dobbs v. Pyramid Securities Co., Inc., 165 Miss. 269, 147 So. 328.
The interference of the appellee regardless of where such interference took place resulted in the breach of the contract in Forrest County, Mississippi, and the cause of action accrued to recover for the breach of the contract in Forrest County, Mississippi.
Masonite Corp. v. Burnham, 164 Miss. 840, 146 So. 292, 91 A.L.R. 742; Sanford v. Dixie Construction Co., 157 Miss. 626, 128 So. 887; Coca Cola Bottling Co. v. Cox, 174 Miss. 790, 165 So. 814.
The cause of action occurred or accrued at the place of the injury which in the present case is at the place where the contract was being performed or in Forrest County, Mississippi, and we, therefore, submit that the venue of this action was in the Circuit Court of Forrest County, Mississippi, or in Tippah County, Mississippi, and that the plaintiff had the right to elect which of the two counties he would bring his suit.
Section 4167, Code of 1930.
We submit that it was entirely proper to file the suit for the breach of the contract in the county where the contract was made and where the person injured lived, regardless of where the action took place which caused the breach and that Section 4167 of the Code of 1930 authorizes the filing of the suit in the county where the appellee had an agent at the time of the transaction and that the plea in abatement should have been overruled and because of the error of the lower court in refusing to do so, we submit that this cause should be reversed and remanded.
Heidelberg Roberts, of Hattiesburg, for appellee.
In the case of Sanford v. Dixie Construction Co., 157 Miss. 626, 128 So. 887, it was held that foreign corporations were to be regarded in this state the same as domestic corporations. In that decision the court was dealing with Chapter 90 of the Laws of Mississippi of 1928, which is now Section 4163 of the Mississippi Code of 1930 and Section 495 of the Mississippi Code of 1930. The latter section provides that civil actions of which the circuit court has original jurisdiction shall be commenced "in the county in which the defendant or any of them may be found, and if the defendant is a domestic corporation, in the county in which said corporation is domiciled, or in the county where the cause of action may occur or accrue except where otherwise provided."
Our court has held that the allegations of a declaration are not conclusive on the question of proper venue.
Trolio v. Nichols, 133 So. 207, 160 Miss. 611.
This court is familiar with the general rule that neither the place of the contract nor place of performance is controlling. The courts try, if they can, to determine what was the intention and purpose of the parties to the contract at the time of the execution thereof as to the law of what state would be controlling.
We are not unmindful of the terms and provisions of Section 4166 of the Mississippi Code of 1930, which provides that a foreign corporation found doing business in this state shall be subject to suit here to the same extent that corporations of this state are, and Section 4167 of said code provides that any agent may be served with summons if found within the county where the suit is brought. These sections of our code have nothing whatever to do with the venue of actions, except inferentially.
The cause of action occurred or accrued, as per the statement in the declaration and per proof furnished by the only witness presented herein, outside the State of Mississippi. Our opposition here fails to differentiate between the cause of action and the person whose rights are involved. If Mr. McLeod had received personal injuries in Louisiana in his attempt to fulfill the contract, it would not be contended that the injuries were done in Forrest County, Mississippi. Mr. McLeod may have received an injury in Louisiana and may have suffered many losses in Forrest County, Mississippi, because of the injury done to him in the State of Louisiana. The statute does not provide that the venue of the action shall be where the person was injured, but provides that the venue shall be where the cause of action occurred or accrued, which in this case, as above stated, was in the State of Louisiana.
It is the general rule that an action or contract is transitory and may be entertained wherever jurisdiction of the party can be obtained, regardless of where the contract was made or where it was to be performed.
15 C.J. 738, par. 40; Elmore County v. Tallapoosa County, 128 So. 158; 27 R.C.L. 801, par. 22; Board of Public Instructions v. First National Bank, 143 So. 741; Johnson v. Tostevin, 60 Ia. 43, 14 N.W. 95; People v. District Court, 74 Col. 121, 218 P. 1047; Carmichael v. Arms, 51 Ind. 689, 100 N.E. 302.
Our view of this case is that this is not a suit on a contract, but one as would be properly considered sounding in tort. However, the rule is not different respecting torts or contracts and for that reason the authorities last above mentioned are in point.
This court, speaking through Chief Justice Smith, on December 2, 1935, in the case of Grenada Bank v. Petty, 164 So. 316, 174 Miss. 415, held that the words "occur" or "accrue" in Section 495 of the Mississippi Code of 1930 mean "to come into existence as an enforceable claim; to appear."
The cause of action here did not come into existence as an enforceable claim, or appear in Mississippi. This took place in the State of Louisiana.
Beale v. Yazoo Yarn Mill, 88 So. 416.
Our opposition is confused in not differentiating between the situs of a contract and the venue of an action either ex contractu or ex delicto. If we concede for the sake of argument that the order, copy of which is attached to the declaration, is a contract and was completed in Forrest County, Mississippi, that would only conclude that the contract, if it is a contract, must be interpreted by the laws of the State of Mississippi, or the laws of the place where the contract is to be performed. It does not mean that any terms and provisions of the contract may be enforced where Mr. McLeod might have accepted the same. The same rule applies with reference to tortious interference with the performance of a contract, as for any other action sounding in tort. All such actions are transitory in nature, and, as in this case, we think that if the interference had been had in Mississippi the suit could have been maintained in the county where the interference was had. Since there was no interference with the getting of piling under the order in the State of Mississippi, the only place the suit can be brought in this state is Tippah County.
Argued orally by F.M. Morris, for appellant, and by M.M. Roberts, for appellee.
The declaration in this suit was filed by the appellant against the appellee for $5,277.50 on one count, and for $226.51 on a second count. The second count was adjusted, and disappeared from the case. The first count of the declaration alleged a contract for certain sticks of piling which the appellant was to produce for the appellee; stating that it was engaged in such business and had contracted to buy the necessary piling; but that the appellee defeated the successful carrying out of this contract to obtain and deliver to it the piling, by itself dealing directly with the subproducers, thus rendering it impossible for appellant to secure, under its arrangement, the timbers which it had agreed to produce and deliver to the appellee.
It is alleged in the declaration that there remained undelivered 351,833 linear feet of said piling, upon which the appellant was entitled to a profit of one and a half cents per linear foot, aggregating the sum of $5,277.50, which could and would have been produced within the time fixed by the contract, September 1, 1933. The declaration further avers that appellant was ready, willing, and anxious to carry out the provisions of its contract, but was prevented from doing so by the wrongful conduct of appellee in dealing directly with the subproducers, thereby interfering with appellant's arrangement with them.
It appears that the Manassa Timber Company was a foreign corporation, which had filed its charter with the secretary of state in accordance with the law, and appointed an agent, with residence in Tippah county, where the Manassa Company had its place of business, upon whom process could be served, binding the company as though it were a domestic corporation. The record shows that appellant had negotiated with parties in Louisiana to supply it with the piling to fill this order; and that the appellee had purchased from the parties in Louisiana timber of a similar kind; and appellant contends that the contract was breached by the wrong done in Forrest county, where the appellant is domiciled. The declaration was filed in Forrest county, and summons issued, directed to Tippah county, and served upon the agent appointed by the appellee in that county. The appellee filed a plea in abatement to the jurisdiction of the court, in which it was alleged that the cause of action complained of did not occur or accrue in Forrest county, Miss., and that the appellee is not domiciled in Forrest county, does not have its principal place of business there, and in fact is not engaged in business in that county; that the allegation of the plaintiff, set up in the declaration, was a claim occurring or accruing outside of Forrest county, Miss.; that the appellee is a foreign corporation, domiciled in St. Louis, Mo.; that it has an agent for the service of process in Mississippi; and that, if appellant has a claim of any kind against the appellee in the nature of a breach of contract incurred outside of Forrest county, Miss., the court has no jurisdiction, as claimed in the declaration, all of which the defendant is prepared to verify; and the plea in abatement is sworn to.
The court below sustained the plea in abatement, and dismissed the suit at appellant's cost. Section 495, Code 1930, reads as follows: "Civil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant or any of them may be found, and if the defendant is a domestic corporation, in the county in which said corporation is domiciled, or in the county where the cause of action may occur or accrue except where otherwise provided, and except actions of trespass on land, ejectment, 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 county 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, or if a public officer be sued in any such action, out of the county of his household and residence, although a surety or sureties, or some of the sureties, on his bond, or other joint defendant, sued with him, be found or be subject to action in such county, the venue shall be changed, on his application, before the jury is impaneled, to the county of his household and residence."
We are of the opinion that the jurisdiction of the action in this case was in Tippah county, not in Forrest county. The alleged wrongful conduct of the appellee occurred outside of the state of Mississippi, and the cause of action, if any, occurred or accrued there, under the language of the above section. The words "in the county in which said corporation is domiciled, or in the county where the cause of action may occur or accrue" limit the bringing of the suit, on the facts in this case, to the domicile of the corporation; and under our statute of domestication the appellee was to be treated as though domiciled in Tippah county; and, since the cause of action did not occur in Forrest county, the court there was without jurisdiction.
We are therefore of the opinion that the court below was correct in dismissing the suit, and the judgment is affirmed.
Affirmed.