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(100 So.) consignment to appellees. It was held in the shipped expecting that about 3313 per cent. is lower court that it was a shipment on con- going to be sold. When the holidays are over signment, and therefore that appellees were we expect immediate remittance for all sales. not liable, and the bill was dismissed; from Prompt settlements by all of our customers are which decree this appeal is here prosecuted. absolutely necessary, owing to the enormous The complainant (appellant) and

capital required to conduct our business."

de. fendants (appellees) carried on their negotia

With each shipment of goods was an itemtions entirely through correspondence. The ized statement showing the amount of goods record discloses this correspondence, and it with the price, etc. Printed on these bills or is a question of law for this court to say statements at the top is: what was the character of this contract.

"On Though the record indicates that these par

days memorandum."
ties had had business relations before 1917,

On the bottom in red:
the written evidence of those transactions is
not before the court. These relations were

"When you accept these goods you assume resumed in 1917. In November of that year and must pay us in full for all that you do not

all risks of loss by fire, theft, or otherwise, the two Wilkinsons wrote Soden & Co, a let

ter stating that they wished to put in a nice
line of jewelry, and requesting Soden to Also there was inclosed in each shipment
send them a list of goods. This request was a printed paper containing, among other
complied with, and on November 19th these things, the following:
defendants filled in a written order for cer "Enjoy your income. All memorandum goods
tain goods made out on a printed order are billed net, no discount. The net wholesale
blank form of the appellant. We quate the price of each article is found by ignoring the
material part of this order as this constitutes second figure below the line. For the price
the contract between the parties upon which usually sold at read the figures above the line

all of their subsequent business was trans-
acted. It reads as follows:

Then follows, of course, the figures indicat"Please ship express prepaid a stock of jew- ing the wholesale price and the price usually

sold for by the retailer.
elry on memorandum, all not sold to be re-
turned about January 4, 1918. The agreement

The two shipments in question were orderis to pay only for the goods not returned.”

ed by letters in January and November, re

spectively, in 1920. Our attention is called In addition to this kind of an order blank, by the appellees to a letter written by them it was the custom of the appellant to inclose to the appellant during their business relawith each shipment of jewelry a self-ad- tions, in which the appellees referred to dressed postal card to be signed by the con

them as handling the goods on consignment. signee, which reads as follows:

It is also the contention of the appellees

that the appellant did business in two "Jewelry shipped [date to be filled in) | 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, bePostal cards of this character relating to

cause the goods here were bought on the the shipments in suit were duly signed by

memorandum plan. these defendants and returned to the com While the two shipments in question were plainant.

not ordered on the regular blanks of the apAdvertising matter printed on the letters pellant, yet the course of dealing, beginning of the appellant have also to be considered. in 1917, as shown by this record, and various Under the title "Our Plan" is printed:

orders of appellees filled out on these order "We put a stock of jewelry into the mer- blanks, is conclusive evidence that the ap

It is shipped in nice "pellees were entirely familiar with the busidisplay trays, express prepaid. It is billed ness methods of the appellant, with the stipon memorandum at the net wholesale price, the ulations contained on its letters, order merchant pays us, once in three months, for the jewelry sold.' He ships the jewelry back blanks, and other advertisements, and that for brand new stock at least once a year. He these two shipments were ordered in the invests nothing. He pays only for what he same manner as were the others, and that does not return. He can ship the stock back the same contract existed as to them. and discontinue any minute."

[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:

parties and the real nature of the transac"Our memorandum plan is unique. The cus- tion, rather than the language which the tomer invests nothing; his sales are made be- parties employed.

A material question is fore be pays. All holiday stocks are filled and whether or not the consignee acquires com

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chants store.

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plete dominion over the goods with the right | Collins & Collins, of Laurel, for appellant, to sell them upon such terms and conditions F. $. Harmon, Asst. Atty. Gen., for the as he' may see fit, and is bound to pay the State. consignor a stipulated price therefor. In such case it is usually held that the contract HOLDEN, J. Herbert Strickland appeals is one of sale, even though the purchaser from a conviction on a charge of unlawfully may have the right to return and receive transporting intoxicating liquors in an aucredit for the unsold goods. 35 Cyc. 290 and tomobile from one point within the state to 291; Mechem on Sales, vol. 1, § 46.

another point within the state, under chap“A contract of sale or return is an agrees ter 189, Laws of 1918 (section 2136a, Hemingment by which goods are delivered by a whole-way's Supplement). Section 1 of said act . sale dealer to a retailer to be paid for at a reads as follows: certain rate if sold again by the latter, and if pot sold to be returned.” Story on Sales, 8 company, express company or any common car.

"That it shall be unlawful for any railroad 249.

rier, or any officer, agent or employee of any of A very interesting case upon this subject them, or any other person, to ship or to transis that of D. M. Ferry & Co. v. Hall, 188 port into, or to deliver into this state in ang Ala. 178, 66 South, 104, L. R. A. 1917B, 620. ituous, vinous, malted, fermented, or other in,

manner, or by any means whatsoever, any spirThe Supreme Court of Alabama very inter- toxicating liquors of any kind whether intended estingly reviews the cases bearing upon this for personal use or otherwise, or whether in question. To this opinion there is also an the original package or otherwise, from any exhaustive pote,

point without this state to any point within this [2] In this case there was an order for state, or from place to place within this state, certain goods and an agreement to return

to any person, firm or corporation within this those not sold and an agreement to pay for state, save as provided in section 12 of this

act." those not returned. There was

à price charged for these goods. These defendants

The facts upon which the state bases the had complete dominion over them. They

conviction are as follows: Strickland was had the right to sell them at any price they a taxi driver in the city of Laurel, and for so desired. This contract is a much more hire undertook to transport Ira Short and simple example of a contract of sale and re.

two girls from Laurel to Blodgett. Miss. turn than the one discussed in the Alabama Soon after leaving Laurel and proceeding case,

toward Ellisville, Strickland stopped his car The decree of the court below will be re- in front of a house and inquired about getversed, and a decree will be entered here in ting some whisky. They then proceeded favor of the appellant for the sum of $998.- down the road and stopped at a thicket 08, with the legal rate of interest from Oc- where Short obtained from a man named tober 25, 1921.

Pitts two Coca-Cola bottles full of whisky, Reversed, and judgment here.

which they took in the car, Strickland pay. ing for it, and then proceeded on their journey to Blodgett. Strickland and Short very soon drank the whiskey, became intoxicated,

and it finally wound up in a difficulty beSTRICKLAND V. STATE. (No. 23828.) tween the two men, which resulted in all

parties returning to Laurel. This charge was (Supreme Court of Mississippi, Division A. then made against Strickland for transportMay 19, 1924.)

ing liquor under the above statute.

A simple statement of the facts shows (Syllabus by the Court.)

there was no violation of the statute here inIntoxicating liquors Om 138 Taxicab driver volved, for the reason that Strickland did

who takes liquor in car to drink not guilty of not transport intoxicating liquor from one unlawful transportation; "to any person."

point "to any person" at another point, Under section 1, c. 189, Laws 1918 (section,

within the state. The liquor was obtained 2136a, Hemingway's Code Supp. 1921), a taxi driver is not guilty of unlawfully transporting by the passenger Short and Strickland to be liquor, where he takes it in his car to drink drunk by them, and was drunk by them and does not undertake to transport it "to any shortly afterwards while proceeding on their person” at another place within the state. journey toward the point of destination.

The liquor was not obtained for the purAppeal from Circuit Court, Jones County; person" at another point. It is clear to us

pose of being carried from one point "to any R. S. Hall, Judge.

the statute was intended to prohibit the Herbert Strickland was convicted of trans- transportation of liquor in the manner preporting intoxicating liquor, and he appeals. scribed by its terms. The complaint of the Judgment reversed, and defendant dis- state is not of having liquor in possession, charged.

but is a charge of unlawfully transporting For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(100 So.) liquor from one point to a person at another , charging crime failed to conclude in accordpoint.

ance with this constitutional requirement it If Strickland bad secured the liquor from was fatally defective, even on motion in arPitts, or had made it himself, and had un- rest of judgment. In discussing this ques. dertaken for himself or some one else, to tion the court in that case, among other transport it “to any person" at another things, said: point, he would have violated the statute

"We must believe that the provision we are involved; but such is not the case before us, considering means that all indictments and inand therefore the proof does not sustain the formations, and affidavits upon which criminal charge under the statute referred to, which prosecutions are based, must conclude 'against was enacted for a different purpose.

the peace and dignity of the state of MissisThe judgment of the lower court is re- sippi.' It is true, even then, the provision apFersed and the appellant discharged.

pears to us to be idle and meaningless, but we Reversed and appellant discharged.

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 CLINGAN V. STATE. (No. 24083.) said in that case in criticism of this consti.

tutional requirement. But we cannot apply (Supreme Court of Mississippi, Division A. the doctrine of harmless error to the extent May 19, 1924.)

of overturning the Constitution. (Syllabus by the Court.)

The same question is involved in the case Indictment and information 32(3)-Indict. of Hose Orick handed down with the presment not concluding with words "against the ent case and is disposed of in like manner. peace and dignity of the state" is void.

Reversed and remanded.
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 con-
clusion charges no offense and is void.

J. R. WATKINS CO. v. FORNEA et al.

(No, 24101.)
Appeal from Circuit Court, Tishomingo
County; C. P. Long, Judge.

(Supreme Court of Mississippi, Division B. Clovis Clingan was convicted of having

May 26, 1924.) possession of intoxicating liquor, and he ap

(Syllabus by the Court.). peals. Reversed and remanded.

Alteration of Instruments Om2-Alteration T. A. Clark, of Iuka, for appellant.

which enlarges scope of instrument as means E. C. Sharp, Asst. Atty. Gen., for the State.

of evidence is material alteration,

An alteration which enlarges the scope of
Appellant, Clovis Cling- an instrument as a means of evidence is ma-

an, was tried and convicted before a justice
of the peace of Tishomingo county, of the

Appeal from Circuit Court, Pearl River charge of having in his possession intoxicat

County; J. Q. Langston, Judge.
ing liquors, from which judgment he appeal.
ed to the circuit court of that county, where

Suit by the J. R. Watkins Company against
he was again tried and convicted and sen- W J. Forena, H. S. Stewart, and another.
tenced to pay a fine of $150 and 60 days' From judgment for named defendants, plain-
imprisonment, from which judgment he pros- tiff appeals. Affirmed.
ecutes this appeal.

Wm. A. Shipman, of Poplarville, for ap The only assignment of error necessary to pellant. notice is that the affidavit charging appel Parker & Shivers, of Poplarville, for aplant with the crime of which he was convict- pellees. ed fails to conclude, as required by section 169 of the Constitution, "against the peace SYKES, P. J. The appellant, a foreign and dignity of the state.”

corporation, as plaintiff, instituted this suit The Assistant Attorney General concedes, against Tom Rester as principal, and H. S. in his brief for the state, that unless Love Stewart and W. J. Fornea as sureties, for V. State (Miss.) 8 South. 465, State v. Mor- the balance of an account due by Rester to gan, 79 Miss. 659, 31 South, 338, and Miller appellant. The principal in the contract, V. State, 81 Miss. 162, 32 South. 951, are Rester, made no defense. Stewart and For overruled, the affidavit is void and this case nea among other things pleaded a material

alteration in the contract made by Watkins In the Love Case it was held that where without their knowledge and consent.

The an indictment, information, affidavit contract upon which this suit is based was

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

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should be reversed.


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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

not pay cash for said goods and other articles sota, U. S. A., this 1st day of December, A.

so sold and delivered to him, and the payD. 1919, between the J. R. Watkins Company, ments at the time and in the manner and in & Minnesota corporation, hereinafter called

accordance with said weekly report blanks, the company, party of the first part, and Tom

as aforesaid, are insufficient to pay therefor, Rester of Poplarville, Mississippi, party of said company may in its discretion, thereafter the second part witnesseth:

either limit the sales herein agreed to be made, “That for and in consideration of the prom- or discontinue the same until such indebtedises and agreements hereinafter contained, ness is paid or reduced as said company may to be kept and performed by the party of the require; and at the termination of this agreesecond part, the company promises and agrees ment the party of the second part agrees to to sell and deliver to the party of the second

return by prepaid freight to said company at part free on board cars at Winona, Minnesota, Winona, Minnesota, or other point at which or at its option, at any of its regular places the same were delivered, in as good condition of shipment, any and all goods and other articles manufactured or sold, or which may the said goods undisposed of by him, and the

as when delivered to him, f. o. b. cars, all of hereafter be manufactured or sold by it, unless prevented by fire, insurrection, invasion,

company agrees to receive such goods, if the strikes or other causes, at the usual and cus

same are in such condition when received at tomary wholesale prices as the party of the Winona, Minnesota, or other point at which second part may reasonably require for sale they were delivered to the party of the second by him from time to time, from the date here part, f. o. b. cars, and pay or credit the party of, until the 1st day of March, 1921, as here- of the second part therefor at the same prices inafter provided, in the following described and if not in such condition when so received

at which the same were sold and delivered, territory, except the incorporated municipalities therein located, to wit, in the state of

by the company shall make a reasonable Mississippi, in Pearl River county; in con

charge for putting them in such condition, if sideration of the sale and delivery, to bim, as such charge from the amount of the goods. So

that can reasonably be done, and to deduct vendee, f. o. b. cars at Winona, Minnesota, or returned, and pay or credit the party of the other regular shipping point as above mentioned, by said company, of the goods and second part with the balance thereof, but no other articles manufactured or sold by it, in goods left by said second party with his cussuch reasonable quantities as he may require tomers, on time or trial, not paid for by them, for sale in said territory as herein provided, to him, shall be returned to said company,

or by them partially used and then returned upon the terms herein expressed, the party of second part promises and agrees as soon as

or be paid for by it, or credited to the acpracticable after said goods and other articles count of said second party. are received, to make a thorough and personal "And it is mutually agreed between the par. canvass of said territory at least four times a ties hereto that the party of the second part year, at his own cost and expense, and to pro- shall pay all transportation charges on goods, vide a proper outfit therefor, and to sell said he so purchases and all expenses and obligagoods or so much thereof as possible, and at tions incurred in connection with the canvass all times during said term said party of the and the sale of said goods, and shall have no second part agrees to keep a complete record power or authority to make any statement or of all goods disposed of by him and on hand representation or incur any debt, obligation or and to make to said company complete regular liability of any kind whatsoever, in the name weekly written reports of the sales and col- of, or for, or on account of said company, and lections, which reports, however, or any of that said company shall in no way contribute them, may be waived by said company, and to the expense of, nor share in the profits or also to report the goods on hand and out- losses on the sales of said goods by said secstanding accounts when requested by said com- ond party, nor have any interest in the acpany 80 to do.

counts due for goods sold by the said second "And the party of the second part promises party, and no printed, advertising or other matand agrees to pay to said company at Winona, ter of said company, sent to or distributed by Minnesota, the wholesale prices aforesaid for said second party, shall be construed to change the goods and other articles sold to him from or modify the terms of this agreement, and time to time, as herein provided, and the pre- that this is the complete, entire and only paid freight and express thereon, if any, dur- agreement between the said parties and that ing said term, at the time and in the manner it shall not be varied, changed or modified in and in accordance with the provisions of the any respect except in writing executed by the weekly report blanks of said company to be parties hereto. The party of the second part furnished to the party of the second part, and hereby promises to pay said company, at Wiat the termination of this agreement to pay the nona, Minnesota, during the term of this agreewhole amount therefor then remaining unpaid; ment, the indebtedness now due it for goods or in cash, within ten days from the date of and other articles heretofore sold and delivinvoice, with the understanding that said com- ered to him, as vendee f. o. b. cars at its regpany will allow a discount of 3 per cent. from ular places of shipment, payment of which said wholesale prices on cash payments, pro- is hereby extended during said term. The vided full payment for all goods previously parties hereto, for the purpose of settling and furnished shall then have been made; but determining the amount now due, hereby musuch payments, or any of them, may be waived tually agree that the said indebtedness now or extended by the said company without no- due said company is the sum of thirteen hun

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(100 So.) dred, sixty-two and 1/100 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

The court below, on objection of defendit is further mutually agreed that either of the parties hereto may terminate this agree- similar import executed a year before the

ants, excluded as testimony a contract of ment at any time by giving the other party notice thereof in writing by mail, and any in- one in question, and also some corresponddebtedness then owing from said second party ence relating to this previous contract. The to said company shall thereupon be and be- court was correct in doing so. This suit is come immediately due and payable.

based on the contract above quoted and not "In witness whereof, the party of the first on any previous contract. Consequently any part has caused these presents to be executed previous contract or correspondence about it in its corporate name by its proper officer, and would have no material bearing on the isthe said party of the second part has hereunto

sues here presented.
set his hand the day and year first above writ-
The J. R. Watkins Company,

It is also the contention of the appellant "By Paul Watkins, President.

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 receipt ed 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 beard read not filled in by the principal and sureties and bereby 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 compang, 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

We cannot agree with either of these con. said indebtedness, the amount of which is now written in said agreement, and for said goods tentions of the appellant. By reference to and other articles, and the prepaid freight and the above contract it is seen that in the express charges thereon, at the time and place, previous sentence to the one in which the and in the manner in said agreement provided. | blank appears the principal promises to pay "Sureties sign here, business men preferred. the indebtedness now due for goods. The Sign in ink.

next sentence in which the blank is filled in "First surety, H. W. Stewart. attempts to state the account between the “Occupation, Farming.

parties as owing at the time of the execution "P. O. address, Poplarville, Miss.

of the contract. Without the filling in of “Second surety, W. J. Fornea.

this blank there was a completed agreement "Occupation, Merchant. "P. O. address, Derby.

to pay the account then owing, which "Witness sign here.

amount was not an agreed or stated amount, "Witness as to signature of first surety:

but would have to be proved by testimony; "R. A. Ladner.

whereas when the blank is filled in this "Witness as to signature of second surety: amount becomes a stated or agreed amount. "M. O. Tetron."

According to the testimony of the sureties

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when they signed this contract the amount The alteration alleged to have been made was left blank, but there was a complete conin the contract was that the amount, $1,362.- tractor agreement on their part to pay 04, was filled in by appellant after the con- / whatever amount was then owed by the tract was executed by the principal and principal to the appellant. The contract was sureties. The testimony of the appellant complete to this extent. And, since the was to the effect that this blank was filled blank was not filled in, they had the right in before the contract was sent to Rester to believe that this particular clause in the for the signature of himself and sureties. contract was not expected to be filled in and The jury found in favor of the sureties, and therefore not to be invoked. judgment was accordingly entered in the cir Second. While it is true that the amount cuit court in favor of these defendants. for which the sureties would have been liable From which judgment this appeal is here under this contract had the blank not been prosecuted.

filled in is exactly the same that it would There was also an itemized account at- have been had this amount been inserted in tached to the declaration which contains the the original contract, yet it is equally true following: “Balance brought forward in con- that this alteration in the contract “enlarges tract, $1,362.04." Then follows an itemized the scope of the instrument as a means of





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