This is a suit for the balance due on an open account in the alleged amount of $2,231.48, arising out of an oral contract, as well as for damages resulting from the breach of this oral contract in the alleged amount of $22,000, these two remedies being consolidated in the same declaration. Subsequent to the filing of the suit plaintiff below filed in such cause an ancillary affidavit together with a bond for attachment. The writ of attachment issued but no property was found. An ancillary writ of attachment issued and there was attached a 1960 model tractor and truck. Thereafter a supplemental declaration in attachment was filed containing the same provisions as in the original declaration. The appellant filed his answer to this declaration in attachment as well as answering in full the entirety of the original, amended declaration. From an adverse judgment in the sum of $10,353.33, defendant below appeals here.
The appellant contends the trial court erred in the following particulars: (1) It failed to sustain appellant's motion to dismiss for lack of jurisdiction and insufficiency of the process had on the defendant. (2) It
These assignments of error will be dealt with in their numerical order following the facts as reflected by the record.
The evidence reflects that appellant and appellee entered into an oral contract about June 1, 1961, after negotiating in regard thereto for a period of time from May 19. This oral agreement appointed appellant distributor or sales agent in a designated area to market rebuilt automobile motors, called "Apco" motors. The purpose of this distributorship, and the contract relating thereto, was the sale of Apco motors in this teritory for the mutual advantage of both parties. Various duties and obligations were placed upon both parties by the agreement. The primary provisions of such contract were: Appellee was to be the distributor or sales agent of Apco motors in an exclusive area of one hundred miles surrounding the City of Jackson. Initially both would work together in the promotion of Apco products. Appellee was to obtain the use of a building agreeable to appellant as the site of the business in Jackson. In addition thereto, he was to maintain at all times an inventory of 150 Apco motors of approximate value of $25,000. This inventory was to consist of all kinds
Special orders of motors needed between scheduled deliveries were to be made by regular freight to be paid by appellee, but for which he was to be refunded by appellant. The appellant was also to pay for shipments made by appellee to out of town customers if made by regular freight, or in the event appellee used his own trucks for such deliveries he was to be paid the sum of $3.00 per motor. These Apco motors were to be delivered to appellee only upon a guarantee by him to supply appellant with a damaged or used motor for each rebuilt motor delivered. Appellee was required to pay a "block deposit" to secure this guaranty. The deposit varied from $30 to $100 per motor depending upon the kind and type delivered. This deposit was to be repaid as the used or damaged motors were picked up by appellant. It was subject to being forfeited in proportion to appellee's failure to have used or damaged motors available at his place of business for delivery to appellant. A deposit was also required upon the skid or frame to which the motor was attached, appellant agreeing to repay this "skid deposit" at the time such frames or skids were picked up by its trucks.
The sale price of the rebuilt motors as supplied to appellee was fixed. He was required to sell wholesale jobbers at appellant's catalogue price, this being the same amount he paid therefor. The profit to appellee in selling to jobbers was by way of a flat fee of approximately $16.00 per engine to be paid by appellant. He could, however, sell to dealers, fleet owners and
No time was specified for the continuance of the contract and there was no mention made of the time in the preliminary discussions leading up to it. Apparently both parties considered the contract to be for an indefinite period. Both parties realized the business was a progressive one and that profits, if any, would be small at first, the hope of both being that the business would grow to the mutual benefit of manufacturer and distributor.
The parties began performance of the contract about June 1, 1961. An agent of the appellant aided appellee in securing temporary storage space, which was to be used until a permanent site could be located, in anticipation of the first shipment of rebuilt motors. This agent also accompanied appellee to the First National Bank of Jackson, Mississippi, where arrangements were made so the distributor could borrow money to purchase his initial inventory as well as to maintain the inventory required by the contract. This financial arrangement was that the bank would furnish ninety percent of the invoice cost of the motors as received, securing the same by a trust receipt covering the property. The appellee was to pay the remaining ten percent and sign a note and trust receipt for the balance, the appellant's part in such financial arrangement being its assurance to the bank that it would repurchase the motors, if repossession
The initial invoice listed 34 rebuilt engines at a cost of $4595.00, "block deposit" of $1340.00, "skid deposit" of $46.00, or a grand total of $5981.00. This invoice was paid by the bank and in turn appellee gave the bank a check for ten percent of the grand total and signed a note and trust agreement for the balance.
Thereafter appellee and appellant's agent found a permanent place of business which was suitable and adequate. It was leased on June 15, 1961 for a three-year period at a price of $300 per month. Appropriate signs were placed on the building advertising the business. Appellant contributed to the expense of these signs. In addition thereto it furnished the appellee with literature, etc., to be used in the advertisement of Apco motors.
The appellee and his wife spent all their time in operating the business in an attempt to make it profitable. They drew no pay therefor, putting all income back into the business. The appellee visited jobbers and other prospective purchasers throughout the area promoting the sale of Apco motors. His wife served as secretary and bookkeeper.
The business continued on an amicable basis until early in November 1961. Appellee maintained his inventory and made sales where he could. The agent of appellant came by on occasion to check the inventory and to aid in the promotion of the business. At the special request of this agent, appellee purchased on August 17, 1961, an additional inventory of 76 motors on the agreement that they would be picked up from him within thirty days. This extra purchase required financing beyond the $25,000 credit allowed by the bank, but by special arrangement the bank agreed to increase its credit on a temporary basis. The motors were not picked up within the time limitation as agreed. In September a shipment of motors for the invoice price of
The business progressed slowly, as was anticipated by both parties. The total of 54 engines in the amount of $9693.00 was received and paid for in October. Other phases of the business, the installation of motors, the adjustment of warranties, the sale of motors and the promotion of sales, continued throughout the month. Further trouble between the parties began in November, resulting, it is contended by appellant, from the refusal of appellee to confine his activities to the primary sale of motors to jobbers rather than promoting sales to dealers and individuals, and also that appellee devoted most of his energies to his individual business rather than to Apco products, both in derogation of the contract.
Appellee contends the contract was terminated by the appellant's refusal to supply motors as ordered to the extent of some 80 units in November. He contends further that the failure to receive engines to sell also deprived him of carrying on his installation and warranty service, since this phase of the business was directly dependent upon the former.
Finally on December 11th appellee was formally notified that his orders had been cancelled. The business lasted, therefore, approximately six months. During this period of time the bank financed 290 engines for the appellee. The motors remaining on hand were tendered to the bank pursuant to the trust agreement by
The evidence discloses without serious dispute that a reasonable time for the development of a business of this nature, in order for the distributor to regain his time, labor and expenses incident to the initial development thereof and to make it profitable, would be one year and that reasonable notice of termination of a business contract of this sort would be six months.
"Out of the great mass of cases on the question of what constitutes doing business within the meaning of the statutes fixing the terms or conditions upon which foreign corporations may do business in the state, it clearly appears that the question is largely one of fact to be determined by the circumstances of each particular case ..."
Appellant next assigns as error the trial court's refusal to segregate the cause of action charging specifically that a cause of action arising ex delicto has been joined with one arising ex contractu, and that such misjoinder has resulted in harm to the appellant. He relies upon Town of Hazlehurst v. Cumberland Tel. & Tel. Co., 83 Miss. 303, 35 So. 951, wherein there was a definite misjoinder of action and as such the Court held that a demurrer to the declaration was properly sustained. The question raised reduces itself to the determination
"Actions at law of a personal nature may be, in form, either ex contract — that is, based upon contract — or ex delicto — based upon tort. Although there is a broad distinction between causes of action arising ex contractu and those arising ex delicto, and a mere matter of contract cannot be converted into a tort, the dividing line between breaches of contract and torts is often dim and uncertain. There is no definition of either class of defaults which is universally accurate or acceptable. In a general way, a tort is distinguished from a breach of contract in that the latter arises under an agreement of the parties, whereas the tort, ordinarily, is a violation of a duty fixed by law, independent of contract or the will of the parties, although it may sometimes have relation to obligations growing out of, or coincident with, a contract, and frequently the same facts will sustain either class of action.
"The determination of whether an action is on contract or in tort requires knowledge of the source or origin of the duty, ... . An action ex contractu only, and not an action sounding in tort, can be maintained for a mere failure to perform a contract... . . if the cause of complaint is an act of omission or nonfeasance which, without proof of a contract to do what has been left undone, will not give rise to any cause of action, then the action is founded upon contract, and not upon tort ... . ."
The primary assignment of error by appellant is that the basis of this suit, an oral contract, is violative of the statute of frauds, Sec. 264, subsection (d), Miss. Code 1942, Anno., and as such is unenforceable, and that he was entitled to a peremptory instruction as a result thereof. The applicable provisions of this Section are:
"An action shall not be brought whereby to charge a defendant or other party:
"(d) Upon any agreement which is not to be performed within the space of fifteen months from the making thereof; or... . Unless, in each of said cases, the promise or agreement upon which such action may be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some person by him or her thereunto lawfully authorized in writing."
"In brief, a contract for an indefinite period, such as one for employment or other performance that is to begin within fifteen months, which by its nature is not deemed to be perpetual, may be terminated at any
"Contracts of present employment and of indefinite duration generally are held not to be within the meaning of this statute requiring contracts not to be performed within fifteen months to be in writing since such contracts are terminable at any time by the parties, and are therefore susceptible of performance within a year from the time of their inception. The possibility of performance within the fifteen months takes the contract out of the operation of the statute. 2 Corbin, on Contracts (1950), Sec. 446; 3 Williston Contracts (3rd ed. 1960, Jaegar), Sec. 495. This rule is particularly applicable to contracts of employment. 49 Am. Jur., Statute of Frauds, Sec. 51. Contracts for personal services for an indefinite time are deemed possible of performance within fifteen months from their formation, since, for example, the employee may die within that period. Ibid., Secs. 58, 30. The phrase `not to be performed' contains negative words, and, accordingly, to bring a particular contract within the statute, there must be a negation of the right to perform it within fifteen months. 37 C.J.S., Frauds, Statute of, Sec. 42. Hence the Barber contract was not within the statute of frauds. Ibid., Secs. 50, 62; Duff v. Snider, 54 Miss. 245 (1876); Boggan v. Scruggs, 200 Miss. 747, 29 So.2d 86 (1947); cf. Gerachi v. Sherwin-Williams Co., 156 Miss. 36, 125 So. 410 (1930), distinguished in 2 Corbin on Contracts, Sec. 446; Edwards & Sons v. Farve, 110 Miss. 864, 71 So. 12 (1916), distinguished in 3 Williston, Sec. 495." See also E.E. Morgan & R.W. Hyde v. Jackson Ready-Mix Concrete, 157 So. 772.
There was a possibility, therefore, of the performance of the contract within fifteen months. The case
Appellant next asserts error in the giving of two unnumbered instructions in the court below which were not designated by the appellant to be made a part of the record here, however, they do appear in appellant's motion for a new trial wherein they are copied in full.
"Instructions ordinarily form no part of the record but they may be made so by bill of exceptions or other appropriate means; and it is well settled that objections to instructions, given or refused, will not be considered on appeal where such instructions do not appear of record... . Instructions are not made a part of the record by being copied into the motion for a new trial, by being spread on the minutes of the court and copied into the record or transcript ... . ." 4A C.J.S., Appeal & Error, p. 620.
By indulging the assumption that these two instructions were properly before the court, they cannot here be considered as being erroneous by reason of the general rule stated in 5 C.J.S., Sec. 1560, et seq: "Where the instructions given by the court are not properly presented to the appellate court, it must be presumed that proper and full instructions were given... . Where all the instructions are not presented to the appellate court, it must be presumed that on all points other than
Lee, C.J., and Ethridge, McElroy and Rodgers, JJ., concur.