Planters' Lumber Co. v. Sibley , 130 Miss. 26 ( 1922 )

Smith, C. J.,

delivered the opinion of the court.

The appellant, a corporation doing business in Jackson, Miss., was the plaintiff in the court below, and the appellee’s intestate, who lived at Rome, Miss., was the defendant, and the action is for the recovery by the plaintiff of the balance alleged to be due by the defendant on an account for lumber sold and delivered. The summons issued after the filing of the declaration was served on the defendant on September 28, 1920, and on March 22, 1921, ■the second day of the term of court to which the cause was returnable, the defendant failing to appear and plead, a judgment by default was rendered for the plaintiff. On a later day of the same term of the court, and without notice to the plaintiff, this judgment was set aside on the petition of the defendant, and the cause was continued to the next term of the court.

The petition on which the judgment by default was set aside alleges that the defendant had employed a firm of three lawyers to attend to the case for him, and that one of them Avas called to a court in another county at the time the plea was due, and that he Avas of the impression that it would be filed by one of his two associates, but that each of them was unavoidably prevented from doing so; one by sickness and the other by being hurt in an automobile accident. The petition also alleges that the defendant has a meritorious defense to the action, but does not allege of what the defense consists. At the succeeding term of the court the defendant appeared, filed a plea, and the cause was tried on its merits, resulting in a judgment for the plaintiff, but for less than the amount sought to be recovered.

The defendant by his plea and evidence admits purchasing the lumber for the sum claimed by the plaintiff, but claims and was allowed by the court and jury a deduction therefrom because of an alleged failure of the plaintiff to deliver all of the lumber purchased. The ord£r for the lumber was given by the defendant to one Shultz, a traveling salesman of the plaintiff, and the defendant’s evidence is to the effect that he desired to construct three houses; that Shultz aided him in drawing the plans therefor, made an estimate of the material required for the building thereof, and agreed that the plaintiff would sell and deliver to the defendant at Rome, Miss., building material sufficient for the construction of the three houses, and that in event the material delivered by the plaintiff should not be sufficient therefor the defendant might purchase the necessary material for the completion of the houses in the local market, and deduct the cost thereof from the amount due the plaintiff; that the material delivered by the plaintiff was not sufficient to complete the houses necessitating the expenditure by the defendant of eight hundred and thirty-two dollars and seventy-two cents in the purchase of additional material.

The plaintiff sought, but was not permitted, to prove that Shultz was authorized only to solicit orders for building material and transmit the same to the plaintiff for ap-; proval, and also that it was customary among dealers to aid prospective purchasers of building material for the construction of houses to estimate the quantity and character that would be required therefor.

The evidence for the plaintiff is to the effect that Shultz aided the defendant in determining what building material would be necessary for the construction of the houses, and that he then made an itemized list thereof, and offered on the part of the plaintiff to sell the material as listed to the defendant for a certain price, which the defendant accepted, a copy of which list was then given by Shultz to the defendant; that Shultz did not agree that in event the material delivered to the defendant by the plaintiff should not be sufficient for the construction of the houses that the defendant might purchase sufficient therefor in the local market, and charge the cost thereof to the plaintiff. The defendant admits that Shultz gave him this itemized list of the material purchased, but claims that this was not done until about two weeks after the contract was made.

It appears from the evidence of both the plaintiff and defendant that upon the receipt of the order from Shultz the plaintiff mailed to and the defendant received a confirmation thereof, setting forth each item of material purchased by the defendant and to be delivered by the plaintiff, and that the material shipped to and received by the defendant corresponded therewith. No demand was made by the defendant on the plaintiff for additional material, and it knew nothing of the defendant’s claim that the contract of sale provided therefor until advised thereof by the defendant when it called on him for payment. The allowance claimed by the defendant being less than the amount sued for, the court below charged the jury to return a verdict for the plaintiff, but submitted the amount thereof to its determination in the light of the evidence as hereinbefore set out. The verdict returned was in accordance with the defendant’s contention.

A judgment by default may be set aside during the term at which it ivas rendered, at the request of either party thereto, without notice to the party in whose favor it was rendered, and we cannot say that the court below erred in holding that the defendant’s attorneys were not negligent in failing to file his plea when due. The defendant should have set forth in his petition the defense which he desired to make to the action so that the court might itself determine whether or not it was meritorious, but his failure so to do cannot now be availed of by tbe plaintiff, for had he set forth the nature of his defense we must presume that it would have been that afterwards get forth in .his plea, to-wit, that his contract with the plaintiff entitled him to an allowance' for certain expenditures made by him in obtaining building material which the plaintiff should, .but failed to, deliver to him, and the rule is that in passing on a ruling of a lower court this court will look to the whole record, and, if in the light thereof no harm appears to have resulted to the appellant from the ruling complained of, the judgment will be affirmed, though the ruling may have been erroneous when made. Hemingway v. State, 68 Miss. 371, 8 So. 317.

• On the merits the only assignment of error necessary to be considered is that the verdict of the jury is not supported by the evidence.

Unless expressly authorized to make an absolute contract of sale, a traveling salesman has authority only to solicit orders and transmit the same to his principal for approval, and the burden of proving that the salesman was authorized by his principal to make such a contract is upon the person asserting it and seeking to avail himself of it. Becker Co. v. Clardy, 96 Miss. 301, 51 So. 211, Ann. Cas. 1912B, 355; Savings Bank v. Grocery Co. et al., 123 Miss. 443, 86 So. 275.

In the case at bar, not only is the salesman who solicited the order not shown to have been authorized to make a contract of sale, but the confirmation of the order by the principal discloses exactly what goods the principal proposed to deliver pursuant thereto, to which the purchaser interposed no objection.

The evidence is insufficient to support the verdict; consequently the judgment will be reversed, and the cause remanded.

Reversed and remanded.