(100 So.)

consignment to appellees. It was held in the lower court that it was a shipment on consignment, and therefore that appellees were not liable, and the bill was dismissed; from which decree this appeal is here prosecuted. The complainant (appellant) and the defendants (appellees) carried on their negotiations entirely through correspondence. The record discloses this correspondence, and it is a question of law for this court to say what was the character of this contract.

Though the record indicates that these parties had had business relations before 1917, the written evidence of those transactions is not before the court. These relations were

resumed in 1917. In November of that year the two Wilkinsons wrote Soden & Co. a letter stating that they wished to put in a nice line of jewelry, and requesting Soden to send them a list of goods. This request was complied with, and on November 19th these defendants filled in a written order for certain goods made out on a printed order blank form of the appellant. We quote the material part of this order as this constitutes the contract between the parties upon which all of their subsequent business was transacted. It reads as follows:

shipped expecting that about 33% per cent. is going to be sold. When the holidays are over we expect immediate remittance for all sales. Prompt settlements by all of our customers are absolutely necessary, owing to the enormous capital required to conduct our business."

With each shipment of goods was an itemized statement showing the amount of goods with the price, etc. Printed on these bills or statements at the top is:

"On

days memorandum." On the bottom in red:

"When you accept these goods you assume and must pay us in full for all that you do not all risks of loss by fire, theft, or otherwise,

return."

Also there was inclosed in each shipment a printed paper containing, among other things, the following:

"Enjoy your income. All memorandum goods are billed net, no discount. The net wholesale price of each article is found by ignoring the second figure below the line. For the price usually sold at read the figures above the line backwards."

sold for by the retailer.

Then follows, of course, the figures indicat"Please ship express prepaid a stock of jewing the wholesale price and the price usually elry on memorandum, all not sold to be returned about January 4, 1918. The agreement is to pay only for the goods not returned."

In addition to this kind of an order blank, it was the custom of the appellant to inclose with each shipment of jewelry a self-addressed postal card to be signed by the consignee, which reads as follows:

"Jewelry shipped

[date to be filled in]

The two shipments in question were ordered by letters in January and November, respectively, in 1920. Our attention is called by the appellees to a letter written by them to the appellant during their business relations, in which the appellees referred to them as handling the goods on consignment.

It is also the contention of the appellees that the appellant did business in two ways-one its catalog way, and the other its received. All not sold is to be sent back to memorandum way. That the catalog way you. Payment is to be made only for what is was the sale of goods, while the memorannot returned." dum way was only a consignment. It is unnecessary to discuss the catalog way, because the goods here were bought on the memorandum plan.

Postal cards of this character relating to the shipments in suit were duly signed by these defendants and returned to the complainant.

Advertising matter printed on the letters of the appellant have also to be considered. Under the title "Our Plan" is printed:

"We put a stock of jewelry into the merchants store. * * * It is shipped in nice display trays, express prepaid. It is billed on memorandum at the net wholesale price, the merchant pays us, once in three months, for the jewelry sold. He ships the jewelry back for brand new stock at least once a year. He invests nothing. He pays only for what he does not return. He can ship the stock back and discontinue any minute."

While the two shipments in question were not ordered on the regular blanks of the apin 1917, as shown by this record, and various pellant, yet the course of dealing, beginning orders of appellees filled out on these order blanks, is conclusive evidence that the appellees were entirely familiar with the business methods of the appellant, with the stipulations contained on its letters, order blanks, and other advertisements, and that these two shipments were ordered in the same manner as were the others, and that the same contract existed as to them.

[1] The question of whether there has been a sale or a consignment of the goods

On another letter, among other things, is depends primarily upon the intention of the printed:

"Our memorandum plan is unique. The customer invests nothing; his sales are made before he pays. All holiday stocks are filled and

parties and the real nature of the transaction, rather than the language which the parties employed. A material question is whether or not the consignee acquires com

"A contract of sale or return is an agree ment by which goods are delivered by a whole-way's Supplement). sale dealer to a retailer to be paid for at a certain rate if sold again by the latter, and if not sold to be returned." Story on Sales, §

The liquor was not obtained for the purpose of being carried from one point "to any Appeal from Circuit Court, Jones County; person" at another point. It is clear to us R. S. Hall, Judge.

(100 So.)

liquor from one point to a person at another | charging crime failed to conclude in accordpoint.

If Strickland had secured the liquor from Pitts, or had made it himself, and had undertaken for himself or some one else, to transport it "to any person" at another point, he would have violated the statute involved; but such is not the case before us, and therefore the proof does not sustain the charge under the statute referred to, which was enacted for a different purpose.

The judgment of the lower court is reversed and the appellant discharged.

Reversed and appellant discharged.

CLINGAN V. STATE. (No. 24083.)

ance with this constitutional requirement it was fatally defective, even on motion in arrest of judgment. In discussing this question the court in that case, among other things, said:

"We must believe that the provision we are considering means that all indictments and informations, and affidavits upon which criminal prosecutions are based, must conclude 'against the peace and dignity of the state of Mississippi.' It is true, even then, the provision appears to us to be idle and meaningless, but we find it in the fundamental law, and we cannot disregard it. The affidavit in the case at bar wholly neglects and contemns this requirement, and is fatally defective."

We heartily agree with what the court said in that case in criticism of this constitutional requirement. But we cannot apply

(Supreme Court of Mississippi, Division A. the doctrine of harmless error to the extent

May 19, 1924.)

(Syllabus by the Court.)

Indictment and information 32(3)—Indictment not concluding with words "against the peace and dignity of the state" is void.

Under section 169 of the Constitution of 1890, requiring that all indictments for crimes shall conclude "against the peace and dignity of the state," an indictment leaving off such conclusion charges no offense and is void.

Appeal from Circuit Court, Tishomingo County; C. P. Long, Judge.

Clovis Clingan was convicted of having possession of intoxicating liquor, and he appeals. Reversed and remanded.

T. A. Clark, of Iuka, for appellant.
E. C. Sharp, Asst. Atty. Gen., for the State.

ANDERSON, J. Appellant, Clovis Clingan, was tried and convicted before a justice of the peace of Tishomingo county, of the charge of having in his possession intoxicating liquors, from which judgment he appealed to the circuit court of that county, where he was again tried and convicted and sentenced to pay a fine of $150 and 60 days' imprisonment, from which judgment he prosecutes this appeal.

The only assignment of error necessary to notice is that the affidavit charging appellant with the crime of which he was convicted fails to conclude, as required by section 169 of the Constitution, "against the peace and dignity of the state."

The Assistant Attorney General concedes, in his brief for the state, that unless Love v. State (Miss.) 8 South. 465, State v. Morgan, 79 Miss. 659, 31 South. 338, and Miller v. State, 81 Miss. 162, 32 South. 951, are overruled, the affidavit is void and this case should be reversed.

an

In the Love Case it was held that where indictment, information, or affidavit

of overturning the Constitution.

The same question is involved in the case of Hose Orick handed down with the present case and is disposed of in like manner. Reversed and remanded.

SYKES, P. J. The appellant, a foreign corporation, as plaintiff, instituted this suit against Tom Rester as principal, and H. S. Stewart and W. J. Fornea as sureties, for the balance of an account due by Rester to appellant. The principal in the contract, Rester, made no defense. Stewart and Fornea among other things pleaded a material alteration in the contract made by Watkins without their knowledge and consent. The contract upon which this suit is based was

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

attached to the declaration and reads as tice to the sureties hereon and without prejufollows: dice to the rights or interests of said com"This agreement, made at Winona, Minne-pany, and if the party of the second part shall sota, U. S. A., this 1st day of December, A. D. 1919, between the J. R. Watkins Company, a Minnesota corporation, hereinafter called the company, party of the first part, and Tom Rester of Poplarville, Mississippi, party of the second part witnesseth:

not pay cash for said goods and other articles ments at the time and in the manner and in so sold and delivered to him, and the payaccordance with said weekly report blanks, said company may in its discretion, thereafter as aforesaid, are insufficient to pay therefor, or discontinue the same until such indebtedeither limit the sales herein agreed to be made, ness is paid or reduced as said company may require; and at the termination of this agreement the party of the second part agrees to return by prepaid freight to said company at Winona, Minnesota, or other point at which the same were delivered, in as good condition as when delivered to him, f. o. b. cars, all of the said goods undisposed of by him, and the company agrees to receive such goods, if the

same are in such condition when received at Winona, Minnesota, or other point at which they were delivered to the party of the second part, f. o. b. cars, and pay or credit the party of the second part therefor at the same prices at which the same were sold and delivered, and if not in such condition when so received by the company shall make a reasonable charge for putting them in such condition, if that can reasonably be done, and to deduct such charge from the amount of the goods so returned, and pay or credit the party of the second part with the balance thereof, but no goods left by said second party with his customers, on time or trial, not paid for by them, to him, shall be returned to said company, or by them partially used and then returned or be paid for by it, or credited to the account of said second party.

"That for and in consideration of the promises and agreements hereinafter contained, to be kept and performed by the party of the second part, the company promises and agrees to sell and deliver to the party of the second part free on board cars at Winona, Minnesota, or at its option, at any of its regular places of shipment, any and all goods and other articles manufactured or sold, or which may hereafter be manufactured or sold by it, unless prevented by fire, insurrection, invasion, strikes or other causes, at the usual and customary wholesale prices as the party of the second part may reasonably require for sale by him from time to time, from the date hereof, until the 1st day of March, 1921, as hereinafter provided, in the following described territory, except the incorporated municipalities therein located, to wit, in the state of Mississippi, in Pearl River county; in consideration of the sale and delivery to him, as vendee, f. o. b. cars at Winona, Minnesota, or other regular shipping point as above mentioned, by said company, of the goods and other articles manufactured or sold by it, in such reasonable quantities as he may require for sale in said territory as herein provided, upon the terms herein expressed, the party of second part promises and agrees as soon as practicable after said goods and other articles are received, to make a thorough and personal canvass of said territory at least four times a year, at his own cost and expense, and to provide a proper outfit therefor, and to sell said goods or so much thereof as possible, and at all times during said term said party of the second part agrees to keep a complete record of all goods disposed of by him and or hand and to make to said company complete regular weekly written reports of the sales and collections, which reports, however, or any of them, may be waived by said company, and also to report the goods on hand and out-losses on the sales of said goods by said secstanding accounts when requested by said company so to do.

"And the party of the second part promises and agrees to pay to said company at Winona, Minnesota, the wholesale prices aforesaid for the goods and other articles sold to him from time to time, as herein provided, and the prepaid freight and express thereon, if any, during said term, at the time and in the manner and in accordance with the provisions of the weekly report blanks of said company to be furnished to the party of the second part, and at the termination of this agreement to pay the whole amount therefor then remaining unpaid; or in cash, within ten days from the date of invoice, with the understanding that said company will allow a discount of 3 per cent. from said wholesale prices on cash payments, provided full payment for all goods previously furnished shall then have been made; but such payments, or any of them, may be waived

"And it is mutually agreed between the parties hereto that the party of the second part shall pay all transportation charges on goods he so purchases and all expenses and obligations incurred in connection with the canvass and the sale of said goods, and shall have no power or authority to make any statement or representation or incur any debt, obligation or liability of any kind whatsoever, in the name of, or for, or on account of said company, and that said company shall in no way contribute to the expense of, nor share in the profits or

ond party, nor have any interest in the accounts due for goods sold by the said second party, and no printed, advertising or other matter of said company, sent to or distributed by said second party, shall be construed to change or modify the terms of this agreement, and that this is the complete, entire and only agreement between the said parties and that it shall not be varied, changed or modified in any respect except in writing executed by the parties hereto. The party of the second part hereby promises to pay said company, at Winona, Minnesota, during the term of this agreement, the indebtedness now due it for goods and other articles heretofore sold and delivered to him, as vendee f. o. b. cars at its regular places of shipment, payment of which is hereby extended during said term. The parties hereto, for the purpose of settling and determining the amount now due, hereby mutually agree that the said indebtedness now

(100 So.)

dred, sixty-two and 4/100 dollars, which sum | account of goods purchased and unpaid for the second party agrees to pay, and payment since the contract was executed. of which is extended as above provided. And it is further mutually agreed that either of the parties hereto may terminate this agreement at any time by giving the other party notice thereof in writing by mail, and any indebtedness then owing from said second party to said company shall thereupon be and become immediately due and payable.

"In witness whereof, the party of the first part has caused these presents to be executed in its corporate name by its proper officer, and the said party of the second part has hereunto set his hand the day and year first above writThe J. R. Watkins Company, "By Paul Watkins, President.

ten.

The court below, on objection of defendants, excluded as testimony a contract of similar import executed a year before the one in question, and also some correspondence relating to this previous contract. The court was correct in doing so. This suit is based on the contract above quoted and not on any previous contract. Consequently any previous contract or correspondence about it would have no material bearing on the issues here presented.

It is also the contention of the appellant that as a matter of law there was no mate

"Party of the second part sign here in ink:rial alteration of this contract, even though "Tom Rester. the jury accepted the testimony of the de"In consideration of one dollar in hand paid fendants to the effect that the blank was fillby the J. R. Watkins Company, the receipted in by the insertion of $1,362.04. It is conwhereof is hereby acknowledged, and the exe- tended, first, that the contract was not comcution of the foregoing agreement by said plete with this blank, and that, since it was company, which we have read or heard read not filled in by the principal and sureties and hereby agree and assent to, and the sale before signing, there was an implied authorand delivery by it to the party of the second ity given the appellant to fill in this amount; part, as vendee, of its goods and other articles second, that, since there is no dispute as to and the extension of the time of payment of the amount then due by the principal to the indebtedness due from him to said company, as therein provided, we, the undersigned the appellant, and that the correct amount sureties, do hereby waive notice of the accept- was inserted in this blank, then this in no ance of this agreement and diligence in bring-wise altered or changed the liability of the ing action against the second party, and joint-parties and is therefore not a material alterly, severally and unconditionally promise and ation of the contract. guarantee the full and complete payment of said indebtedness, the amount of which is now written in said agreement, and for said goods and other articles, and the prepaid freight and express charges thereon, at the time and place, and in the manner in said agreement provided. "Sureties sign here, business men preferred. Sign in ink.

"First surety, H. W. Stewart.
"Occupation, Farming.

"P. O. address, Poplarville, Miss.
"Second surety, W. J. Fornea.
"Occupation, Merchant.

"P. O. address, Derby.

"Witness sign here.

"Witness as to signature of first surety: "R. A. Ladner.

"Witness as to signature of second surety: "M. C. Tetron."

The alteration alleged to have been made in the contract was that the amount, $1,362.04, was filled in by appellant after the contract was executed by the principal and sureties. The testimony of the appellant was to the effect that this blank was filled in before the contract was sent to Rester for the signature of himself and sureties. The jury found in favor of the sureties, and judgment was accordingly entered in the circuit court in favor of these defendants. From which judgment this appeal is here prosecuted.

There was also an itemized account attached to the declaration which contains the following: "Balance brought forward in contract, $1,362.04." Then follows an itemized

We cannot agree with either of these contentions of the appellant. By reference to the above contract it is seen that in the previous sentence to the one in which the blank appears the principal promises to pay the indebtedness now due for goods. The next sentence in which the blank is filled in attempts to state the account between the parties as owing at the time of the execution of the contract. Without the filling in of this blank there was a completed agreement to pay the account then owing, which amount was not an agreed or stated amount, but would have to be proved by testimony; whereas when the blank is filled in this amount becomes a stated or agreed amount. According to the testimony of the sureties when they signed this contract the amount was left blank, but there was a complete contract or agreement on their part to pay whatever amount was then owed by the principal to the appellant. The contract was complete to this extent. And, since the blank was not filled in, they had the right to believe that this particular clause in the contract was not expected to be filled in and therefore not to be invoked.

Second. While it is true that the amount for which the sureties would have been liable under this contract had the blank not been filled in is exactly the same that it would have been had this amount been inserted in the original contract, yet it is equally true that this alteration in the contract "enlarges the scope of the instrument as a means of