Opinion
No. 38428.
May 26, 1952.
1. Contracts — breach — cause of action.
Where a contract was made by a foreign corporation, authorized to do business in this state, to ship the equipment for and to install an ice cream freezing unit in plaintiff's store in a designated county, but the contractor failed to install after shipment made, the breach occurred and the cause of action accrued in the county where the installation was to be made.
2. Corporations — foreign — venue.
An action may be brought against a domestic corporation in the county where the cause of action accrued, and the same rule applies to a foreign corporation authorized to do business in this state. Sec. 1433 Code 1942.
3. Appearance — no process necessary.
When the defendant has appeared and contested the action on the merits without any motion to quash, the matter of the validity of original process becomes immaterial.
4. Limitation of actions — oral contract — time of accrual of cause of action.
Where under an oral contract for the installation of an ice cream freezing unit, the time for the installation was to be fixed as of the date when the purchaser requested it and the action for the breach in the failure to install was instituted within three years from the date of the request, the action was not barred by the three year statute of limitations, although more than three years had elapsed since the contract was made and the equipment had been shipped. Sec. 729 Code 1942.
5. Damages — depreciation of equipment.
Where the equipment mentioned in the foregoing headnote had remained crated and stored beneath a shed, and where no loss of function or depreciation in efficiency was shown, and from the standpoint of utility it was good as new, it was error to refuse an instruction that no loss for depreciation could be recovered by plaintiff, particularly as any opinion as to depreciation in function would be purely speculative.
6. Damages — mitigation — loss of profits.
It was shown by the proof that competent mechanics were available to install and service the equipment mentioned in the foregoing headnotes, so that in order to mitigate and avoid damages it was the duty of the purchaser to have the installation thus made, and failing to do so, it could not recover loss of profits allegedly incurred for want of the installation, and such failure is not to be justified on the fear that installation by others would impair the seller's warranty.
7. Damages — contract — breach to install ice cream freezing unit.
Under the facts outlined in the foregoing headnotes the only items of damages recoverable by the purchaser were the cost of installation and servicing by others than the seller.
Headnotes as approved by Kyle, J.
APPEAL from the circuit court of Kemper County; JOHN D. GREENE, Judge.
Daniel, McKee McDowell, for appellant.
I. Appellant's assignment of error No. 1 is as follows: "The lower court was in error in overruling the appellant's plea to the jurisdiction." A discussion of this assignment more properly is divided into two different phases; the first, concerns the venue jurisdiction; and the second, concerns the process as required by the statute.
To reiterate the factual situation involved the defendant below, appellant here, is a foreign corporation, authorized to do business in Mississippi, with a resident agent appointed for the service of process who is a resident and resides in Hinds County, Mississippi. The nature of the suit is one for damages for breach of contract. The contract was made in Hinds County, Mississippi. The breach assigned is a failure to perform. The only process was served upon the resident agent of the defendant and appellant in Hinds County, Mississippi. The question presented is "Where did the cause of action occur or accrue?"
It is the contention of the appellant here that it was not the intention of the Legislature to provide, by the use of the words "occur or accrue" that a corporation could be sued in any county of the State in civil actions, but to limit such civil actions to particular types. Thus in an action ex delicto, an affirmative act is consummated within a county and the cause of action accrues at that point, but the case on appeal is based upon an action ex contractu. Reference is made to the case of Forman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So.2d 344, 148 A.L.R. 469, involving a libel suit against a newspaper, in which this Court has made the following observation on the question: "It would seem futile to try to justify venue here by a consideration of the area of greatest disparagement. Certainly, if the occurrence of injury is the criterion, venue would be as extensive as circulation. Nor is any decision helpful which merely holds that a cause of action arises `where the paper is circulated' unless it mean one of the two opposites, to wit wherever the paper is circulated, or where the paper is first circulated. Our statute is concerned not with where the damage occurs but where the cause of action arises or `accrues'."
For a further discussion of this particular question, reference is made to Jurisdiction and Venue of Transitory Actions against Nonresidents of Mississippi, by J.M. Stevens, Jr., 14 Miss. L.J. 495. An observation is made that if the phrase "in the county where the cause of action may occur or accrue is or can be interpreted to apply to actions ex contractu as well as to actions ex delicto, then it would be tantamount to a holding that a corporation in civil actions would be subject to suit in any county of the State of Mississippi.
Finally reference is made to the case of McLeod Lbr. Co. v. Manassa Timber Co., 180 Miss. 552, 178 So. 83, which according to the appellant's interpretation is a case practically on all-fours with the case on appeal. There the Manassa Timber Company, a foreign corporation doing business in Mississippi, with its resident agent appointed for service of process in Tippah County and having its domicile in Tippah County, entered into a contract with the McLeod Lumber Company, a resident of Forrest County to purchase piling from said company. The foreign corporation failed to perform its contract by purchasing said piling, and was sued in Forrest County, with process being served upon its resident agent in Tippah County. The court there held that it did not have jurisdiction and this Court upheld the decision. In the case on appeal, the appellant is a foreign corporation doing business in Mississippi with resident agent appointed and residing in Hinds County where process was served upon him. The appellant entered into a contract with a resident of Kemper County and the appellant according to the suit failed to perform its contract and suit was instituted in Kemper County. It is the firm contention of the appellant that the two cases are analagous; that under the statutes of this State, the circuit court of Kemper County was without venue jurisdiction to try this lawsuit.
On the second phase of this assignment of error, that of the insufficiency of process, Sec. 5346 Code 1942, governs the method of service of process under the circumstances of this case. Particular reference is made to the case of Superior Oil Co. v. Smith, 200 Miss. 782, 29 So.2d 114, 116.
II. Appellant's assignment of error No. II is as follows: "The lower court was in error in overruling the appellant's plea of the Statute of Limitations. Sec. 729 Code 1942. For the sake of this argument alone, taking the set of facts as alleged and testified to by the plaintiff, he made an oral contract for the purchase and installation of this equipment in May, 1946, received the equipment in August, 1946, demanded installation in June, 1948, and filed suit for failure to perform in February, 1950. The declaration as amended further says that installation was to be made at any time upon the request of the plaintiff."
Now on the above last mentioned set of facts, when did the statute of limitations commence to run? In the case of Whitaker v. Davenport, et al., 193 Miss. 523, 10 So.2d 202, a case wherein a partner surviving another partner agreed to hold money upon demand of deceased partner's heirs, and this Court held that an action was barred three years after the death of the partner. In the case of Johnson v. Pyles, 11 S. M. 189, this Court held the statute of limitations begins to run, whenever the cause of action accrues. In other words, the time limited is to be computed from the day upon which the plaintiff might have commenced an action for the recovery of his demand. In the case of Johnson v. Crisler, 125 So. 724, with reference to a certificate of title by an attorney, this Court held the time runs from the date of the certificate and not from the date of the discovery of the damage. In the case of Minor v. McDowell, 113 So. 576, as to a demand note, this Court held the time begins to run from the date of the note and not from the date of the demand. In the case of W.N. Pass v. Grenada Co., et al., 71 Miss. 426, 14 So. 447, as to contribution between sureties, this Court held that the time begins to run from the date of the judgment against the surety and not from his demand. In the opinion of the appellant, the factual situation presents a situation analagous to that of a demand note, i.e. the equipment was received in August, 1946, and installation was to be made at any time broke down or was sold, so that commencing in August, 1946, the contract was for performance by the defendant upon the request of the plaintiff, and the demand is not necessary to commence the statute, but the same began to run as of the time the plaintiff could have demanded performance on the part of the defendant.
From the further testimony of Mr. Stennis, it was obviously within the contemplation of the parties that the installation was to be made at any early date. From the pleadings and from the testimony it is apparent that the plaintiff could have demanded installation immediately upon receipt of the equipment, that the statute of limitations commenced to run as of that date and that this action is barred by the three-year statute of limitations.
III. The remaining points assigned as error will be regrouped and discussed as two particular points, namely: The measure of damages and the refusal of the lower court to grant directed verdict on particular items; and the verdict of the jury is contrary to the overwhelming weight of the evidence and to the instructions given.
This is a discussion of the first point that the measure of damages is improper and the court erred in refusing directed verdicts as to some of the damages requested. The plaintiff in his amended declaration requested damages for the following losses:
1. Depreciation in value of said equipment ......... $1,000.00
2. Cost of installation of said equipment .......... 150.00
3. Cost of maintenance for 12 months ............... 150.00
4. Difference in cost of ice cream as set out and rental on storage cabinet ............................ 1,000.00 _________ $2,300.00
Taking the items of damages claimed as listed above, the plaintiff has claimed that his machine or equipment has depreciated due to the fact that it was not installed. Yet the record is clear that this equipment was received by the plaintiff in August of 1946, and sat on the sidewalk in front of his store under an open awning until June of 1948 due solely and alone to the actions and desires of this very plaintiff and that he did not request installation until June of 1948. The testimony of Mr. Lanier Walker was to the effect that the equipment had depreciated twenty percent and that is the loss he would have to take in the event he had to sell it, and further that the main reason for the depreciation was that the equipment would be second hand, and further that it was considered just as much second hand in 1948 as at the time of the trial. So that if, by any stretch of the imagination, the item of depreciation can be considered in the measure of damages, the plaintiff himself and alone was responsible for the depreciation, it having remained where it was placed for two years prior to the time he requested installation or even wanted or desired for that to be done. It would seem clear that if there could be allowed any claim for depreciation, it could only be that suffered after June of 1948. Now according to the testimony of the plaintiff himself, in 1948, he knew and had knowledge of three different people, by name, and location, who could have installed the machine, but he did not have it done, and one particular person, Mr. Lanier Walker, offered to install said equipment and his offer was refused. Can it be said that this plaintiff has reasonably, or to be more specific, in any manner, reasonably or otherwise, done what he could have done or should have done to reduce or mitigate his damage? It is familiar law that a party is under duty to reduce his damages, if he can do so, and only one citation is given for this point of law, since it is deemed to be common knowledge and accepted law, reference is made to the case of Mars v. Hendon, 178 Miss. 157, 171 So. 880. It is therefore most respectfully submitted that the lower court was in error in refusing the requested instruction of the defendant that "The court instructs the jury for the defendant, that the plaintiff is not entitled to any damages for depreciation of the equipment, as claimed by it."
The next item of damage claimed is that of cost of installation and cost of maintenance which will be discussed together and the total value of damage claimed was $300.00. It is the contention of the defendant that the plaintiff by his actions had waived the performance of installation and maintenance because of his delay in so demanding performance. His delay in notifying the defendant that he still would require and demand installation resulted in damage to the defendant in that he was unable to install and warrant the equipment as he could have if installation had been made within a reasonable time. Installation at the time requested was made difficult due to the fact that the equipment had been sitting on the sidewalk under an open awning and repairs would be necessary prior to installation, and a complete check-up needed to insure proper performance. Reference is made to 12 Am. Jur. 678, par. 354, notes 10 and 11; 43 So.2d 877 and 19 Am. Jur. 678 note 12: "The rule is well recognized that where a party with full knowledge, or with sufficient notice or means of knowledge of his rights and of all the material facts remains inactive for a considerable time or abstains from impeaching a contract or transaction, or freely does what amounts to a recognition thereof as existing, or acts in a manner inconsistent with its repudiation and so as to affect or interfere with the relation and situation of the parties, so that the other party is induced to suppose that it is recognized, this amounts to acquiescence and the transaction, although originally impeachable, becomes unimpeachable."
The last item of damage claimed is for the difference in the cost of ice cream purchased and the cost of manufacturing it and the rental on storage cabinet, for which the total sum of $1,000.00 is claimed. Reference is here further made to the testimony of Mr. Stennis, the appellee, wherein he states specifically that he knew three different persons who could have installed the machine and equipment in 1948, and that he did not have it installed because he feared the defendant would not fulfill its warranty. So, the appellee does nothing and two years later is claiming loss of profits for the equipment not being installed.
Briefly summarizing the damages claimed can be divided into three classes; depreciation, installation and maintenance, and loss of profits. It is respectfully submitted that the actions of the appellee are the sole, proximate and only cause of the depreciation and loss of profits and that no damage could be allowed for such. As to the remaining item of installation and maintenance it is submitted that the appellee has waived all right to claim such damage, that the actual installation and maintenance has not been performed and any estimate as to such damage must be speculative.
IV. The last assignment of error is that the verdict of the jury is contrary to the overwhelming weight of the evidence and to the instructions given.
Attention is invited to three instructions given for the defendant, namely, the court instructs the jury for the defendant that the plaintiff, if the defendant failed to install said equipment after August, 1948, was under a legal obligation to have said equipment installed, and if you believe from the evidence plaintiff could have done so and failed to do so, then you can only find damages, if any, for cost of installation and service. The court instructs the jury for the defendant that the burden is upon the plaintiff to prove by a preponderance of all the evidence that he requested installation of the defendant within a reasonable time or you shall find for the defendant. The court instructs the jury for the defendant, that the plaintiff was under an obligation to mitigate and reduce the damage to him in every way he could. Considering the above three instructions could this jury reasonably, after considering all the evidence together with the above instructions, return a judgment against the defendant for $750.00. Taking the first instruction by itself the instruction is to the effect that if he could have had the equipment installed and did not, then he could only recover damages, if any, for cost of installation and maintenance, which under the declaration was limited to $300.00. How could any reasonable jury considering the evidence and the instructions reach any other decision but that the plaintiff and appellee was only entitled to damage, if any, for cost of installation and maintenance? The next instruction to the jury was that the burden was upon the plaintiff, appellee, to prove by a preponderance that he requested installation within a reasonable time. From the testimony of the appellee he was in a hurry to get the equipment and wanted it just as quick as the defendant could possibly get it to him — and the defendant shipped the equipment to him as quick as they possibly could. Does it appear that it was within the contemplation of the parties that the appellee would let the equipment sit in the open under an awning for two years before installation?
Jessie P. Stennis, for appellee.
Appellant's first assignment of error is: "The lower court was in error in overruling the appellant's plea to the jurisdiction." We respectfully submit that appellant's plea to the jurisdiction was not properly raised. There was no motion to quash the process, and had a motion been filed by appellant, Sec. 1881 Code 1942 would have decided the issue in favor of appellee, as it states that, in case a motion to quash the process is filed, the cause shall be continued and be triable at the next term.
Forman v. Mississippi Publishers' Corp., 195 Miss. 90, 14 So.2d 344 cited by learned counsel for appellant and quoted on page 8 of appellant's brief is certainly not in conflict with appellee's position in the case at bar. The court in the Forman case simply held that venue was in Hinds County because of the fact that the libelous statements were first published and circulated in Hinds County, and that proper venue for cases of this type was the county and district in which the cause of action first occurred or accrued. This Court, in Forman v. Mississippi Publishers' Corporation cited above, pointed out that in cases against domestic corporations or foreign corporations which had been domesticated, the plaintiff could elect to either sue in the county of the domicile of the corporation or in the county where the cause of action occurred or accrued. In the case at bar appellee had no cause of action against appellant until it had breached its contract to install in Kemper County, Mississippi, and maintain in Kemper County, Mississippi, the ice cream making equipment concerning which this law suit is about. This is a suit on an oral contract, all of which was to be performed in Kemper County, Mississippi. No part of this contract was to be performed in Hinds County. The equipment, so far as the record discloses, was never in Hinds County. A small down payment was made on the equipment in Hinds County, and the major portion of the purchase price was paid in Kemper County by appellee. McCloud Lbr. Co. v. Manassa Timber Co., 180 Miss. 552, 178 So. 83, is certainly not in conflict with appellee's position in this case. In that case the Court stated: "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 (defendant in the lower court) 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, 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. The contract between appellant and appellee was breached in the State of Louisiana. And the Court inferred that had the contract been breached in Forrest County, the circuit court of Forrest County would have had territorial jurisdiction. Since the cause of action occurred or accrued in the State of Louisiana, the residence of the corporation, Tippah County, was the only county in which the suit could be brought. In this connection appellee respectfully calls the Court's attention to Grenada Bank v. Petty, 174 Miss. 415, 164 So. 316. In this case Petty filed suit against the Grenada Bank, a domestic corporation domiciled in Grenada County, with a branch bank in Humphries County. An employee of the bank instituted a criminal prosecution in Humphries County against Petty; Petty was arrested at his residence in Sunflower County, was prosecuted and acquitted in Humphries County. The Court held that the cause of action came into existence, occurred, or accrued in Humphries County where Petty was acquitted, and stated that termination of prosecution in favor of Petty was a material element of the cause of action for malicious prosecution, without which no cause of action therefor came into existence. In this case the Court stated: "`Cause of action' may refer to right to institute and carry on action or to facts giving rise to action. `Accrue' means to come into existence as an enforceable claim; to vest as a right. `Occur' is without technical import and means to meet one's eye; to be found or met with; to present itself; to appear; hence, to befall in due course; to happen. `Or' may suggest alternative, but it may also indicate appositional relation of thought, i.e., it may separate words or phrases the second of which is equivalent or is explanatory of first; it may be used to express alternative of terms, definitions or explanations of same thing in different words, introducing synonym for preceding term; and in this sense may be construed as having same meaning as being, otherwise called, that is, that is to say, to wit." The cause of action in the Petty v. Grenada Bank case above cited occurred and accrued after Petty was acquitted by the jury. In the case at bar appellee had no cause of action until after the breach of contract which was to be performed in Kemper County. The cause of action occurred or accrued at the place where the contract was to be performed.
In Coca-Cola Bottling Company v. Cox, 174 Miss. 790, 165 So. 814, which was a suit against the Coca Cola Bottling Company by Cox for a breach of an implied warranty that the coca cola bottled by the company was fit for human consumption. The Court in that case held that the cause of action accrued in the county where the coca cola alleged to have contained decomposed bodies of roaches was purchased and consumed, and not in the county where it was bottled. In this case the Court cited Masonite Corp. v. Burnham, 164 Miss. 840, 146 So. 292, 91 A.L.R. 752. In the last cited case the Court held that in Jones County which has two judicial districts, each to be treated as a separate county, the Masonite Corporation polluted a stream in the Laurel district and it damaged property in the Ellisville district, the stream flowing from the Laurel district into the Ellisville district. The Court stated that the cause of action accrued in the Ellisville district and the suit could have been brought by Burnham in either the district where the cause of action occurred or accrued or in the district where the Masonite Corporation was domiciled and had its principal place of business.
Words and Phrases defines "occur" as meaning to come into existence and has this further to say: "Occur as used in a fire insurance policy requiring an action to be commenced thereon within 12 months after the loss shall occur is not to be construed in the sense of accrue. The word occur means to happen, in its general and most popular sense, while the word to accrue is to be added or attached to something else, in its generally received sense. The loss occurred at the time the fire destroyed the property."
Learned counsel for appellant argues at great length his point that the process on appellant (defendant in lower court) was defective, and that the lower court was, therefore, without jurisdiction to try the case. Any defect in the process was cured by appellant's appearance in the lower court. No motion to quash the process was filed, and appellant is, therefore, deemed to have waived any defect in the process. Had appellant filed its motion to quash the process, and his motion had been sustained, the only effect would have been to have carried the case over until the next term of court. See Sec. 1881 Code 1942. This case was continued by the court at two succeeding terms.
Appellant relies on Superior Oil Co. v. Smith, 200 Miss. 782, 29 So.2d 114, which is not in point, as in that case a default judgment was taken and the defendant did not appear in the lower court.
In appellant's third assignment of error he cites Mars v. Hendon, 178 Miss. 157, 171 So. 880. This was a case in which Mars sued out a writ of replevin for two mules which were in the possession of Hendon. This case was decided on the ground that excessive damage had been awarded and the Court stated as follows: "In the state of the proof in this record, we think $200 damages for the use of the mules was unauthorized, and that the ordinary measure of damages in replevin, where special damages are not shown, is the value of the property, with interest, from the time of taking, to the time of judgment. Taylor v. Morton, 61 Miss. 24, and Heard v. James, 49 Miss. 236."
There is no question but what the party claiming damage is under a duty to reduce his damages if he can do so, but in the case at bar the appellee had purchased from the appellant a highly complicated piece of machinery which, according to appellant's own testimony, had to be installed under special instructions from the manufacturer. This equipment consists of expansion valves, compressors, electrical motors, agitators, and other highly complicated mechanism, and few people could install this equipment properly. It represented an investment of approximately $3,000, and, had appellee taken it upon himself to install and put into operation this complicated piece of machinery, and the slightest error had been committed in the installation resulting in expensive damage to the equipment, appellant would no doubt have stood back and said, "The equipment has been ruined by a novice, and we are not responsible." In this connection, examine Morel v. Solomon, 203 Miss. 356, 35 So.2d 314, which we respectfully submit is in point in this case. In this case, Solomon sold a washing machine to Morel and delivered it. This machine was apparently simple to install and was installed by Morel when it was delivered by Solomon. It would not function properly and upon Morel's complaint Solomon went out to Morel's, disconnected it, shipped it to New Orleans for reworking, and then delivered it to Morel's back porch, but refused to re-install it. When it was re-delivered, it had a plate over the door which required special tools to remove, and would have been complicated for Morel to have reinstalled. The Court in this case stated: "If then we should say, for the sake of argument, that it would have been the duty of the buyer to accept the repaired or reconditioned machine and to install it himself or at his own expense had it been tendered to him in the same condition as regards installation as it was when originally delivered to him, he was nevertheless not obliged to accept it with a plate screwed upon it in such manner that it would require the additional expense of a hired mechanic to install it or else would require additional tools had the buyer attempted to install it himself — with the risk that in himself dealing with the plate he would do something hurtful to the machine which would be charged against him should the machine again fail to work."
Appellant claims that appellee should have installed the equipment himself, but the Court in Morel v. Solomon stated that purchaser was not under any obligation to install even a simple washing machine, and neither was he under the obligation to search out a skilled mechanic to make such installation. In the case at bar the undisputed testimony is that no one in the entire county of Kemper was qualified to install the ice cream manufacturing equipment, and appellant's own treasurer, the witness Wright, testified that on occasions they had had trouble because the machinery was not properly installed, and that to properly install the equipment one must not only be a skilled mechanic, but must have special instructions put out by the manufacturer of this particular equipment. When appellee wrote appellant for the copper tubing which appellant was supposed to have furnished appellee, appellant wrote back, as shown by the exhibits to the testimony of the witness Stennis, that he was ordering copper tubing of an improper size. Appellee was certainly justified in believing, in view of appellant's past conduct, that if he attempted to get someone else to make the installment he would be running a risk of doing something harmful to the machinery which would be charged against him should the machinery fail to work properly. It is respectfully submitted that this machinery was so complicated that it required a man with the skill and training of a refrigeration engineer to install the machinery and maintain it. This fact was known to both appellant and appellee, and no doubt this is the reason that appellee, when he paid the purchase price of better than $2700, made certain that appellant was going to take the responsibility of having a qualified man to install the equipment and see that it operated for a period of twelve months.
Appellant claims the verdict of the jury is contrary to the overwhelming weight of the evidence and to the instructions given. Appellant has not seriously contended that appellee was not entitled to a verdict for reasonable cost of installation of the equipment and maintenance of same for a period of 12 months, which, according to the appellee's testimony, was $230 as cost of installation and $230 for maintenance after installation for a period of 12 months. The difference in the price paid for the ice cream and similar products and the cost of manufacture was $569.78 and the depreciation was $557.50. Conceding for the sake of argument, and only for the sake of argument, that there might have been some elements of damage which were not properly proved, still the jury gave a verdict for the plaintiff for less than one-half of the amount proved, and this Court has repeatedly held that admission of evidence estimating damages not accepted by jury in determining verdict was harmless. Jones v. Griffin, 156 Miss. 256, 126 So. 35. See also in this connection City of Kosciusko v. Jenkins, 164 Miss. 235, 144 So. 467; Texas Co. v. Jackson, 174 Miss. 737, 165 So. 546; Mississippi Power Light Co. v. Garner, 179 Miss. 588, 176 So. 280; Memphis Steam Laundry Cleaners v. Lindsay, 192 Miss. 224, 5 So.2d 227.
Suit was filed by appellee in the Circuit Court of Kemper County to recover damages for an alleged breach of contract by appellant to furnish and install an ice cream freezing unit. From a verdict and judgment for appellee in the sum of $750, appellants prosecute this appeal.
The appellant, hereinafter designated the defendant, is a foreign corporation authorized to do business in this State and domiciled in Hinds County.
Jurisdiction of the Circuit Court of Kemper County, where the cause was tried, was raised by plea in the answer and was maintained against the plea and motions challenging such jurisdiction. (Hn 1) The equipment was shipped, according to an oral agreement, and was to be installed in plaintiff's drug store in Kemper County. Failure to install the unit occurred in that county and a cause of action accrued then and there. (Hn 2) This fixes the jurisdiction as laid in view of Code 1942, Section 1433, which provides that the venue of an action against a domestic corporation may be brought in the county of the domicile of the corporation "or in the county where the cause of action may occur or accrue". This provision applies to foreign corporations who are subject to the same rights and disabilities as to venue as are domestic corporations. Forman v. Mississippi Publishers Corporation, 195 Miss. 90, 14 So.2d 344, 148 A.L.R. 469; Sanford v. Dixie Construction Co., 157 Miss. 626, 128 So. 887.
We have been cited to no case decided by this Court adjudging the venue as to such defendants as established by the statute where the action is for breach of contract. The contract as to delivery and installation was to be performed in Kemper County, and the cause of action for a failure to install occurred there. While divergent views have been elsewhere expressed, we conclude that jurisdiction was fixed at the place of breach or non-performance. See 67 C.J., Venue, Sec. 31, p. 28, and Sec. 152, p. 94.
(Hn 3) Process was executed upon the designated agent for process in Hinds County. We do not pursue the assignment based upon the alleged insufficiency of process upon such agent. There was no motion to quash. The defendant appeared, there were two continuances, and the case was heard and contested upon its merits.
(Hn 4) The action was not barred by the three year limitation applicable to oral contracts. Code 1942, Section 729. As will be shown hereafter, the contract was entered into in May 1946, and the unit, except for certain necessary parts, was received by the plaintiff in August 1946. It was part of the agreement that installation would await the happening of the earlier of two contingencies, the sale of the existing equipment or its breaking down. It ceased functioning in the summer of 1948. Then for the first time the plaintiff requested installation. Failure to comply with this request set the statute of limitation in operation. Filing of this action in 1950 saved the bar of the statute.
We are thus brought to a consideration of the instructions covering the nature and extent of the damages claimed. Unusual as the contract may appear, because of its right to a deferred installation, it remains true that the right to delay installation was part of the agreement. The unit remained stored beneath a shed or overhead canopy in front of the drug store for two years, and indeed has never been installed. Although there was in the meantime considerable correspondence with regard to missing parts, the delay was attributable to the purpose of the plaintiff to await the happening of either of the events mentioned above, and it is clear that the failure of the defendant at the outset to furnish certain parts of the unit was, in this connection, immaterial. In fact, the plaintiff testified that he did not know the condition of the equipment or whether other parts were missing, for he never uncreated it. He explained that he hestitated to have it installed by third persons lest he impair thereby the one year warranty thereon and the obligation of the defendant to serve it for one year.
The claim for damages, as amended by the plaintiff included the following items: $557.50 for depreciation in the equipment due to the delay; $230 as the cost of installation; $230 as the cost of servicing for one year; $569.78 as the loss of profits allegedly caused by the necessity for purchasing ice cream from outside sources. It may be added that plaintiff's witness stated that $230 included both installation and servicing.
(Hn 5) The court refused to the defendant instructions denying recovery for loss of depreciation, and loss of profits. We find this to be error. No loss of function or depreciation in efficiency was shown. One witness testified, chiefly from the fact that the equipment had remained crated and unused for two years, that its value would depreciate twenty percent. Yet, plaintiff was not concerned with market value. His interest centered about his desire to have it installed and the losses consequent therefrom. It was uncontradicted that the unit was, from the point of view of utility, as good as new. Further, since it had remained crated, opinions as to its depreciation in function was purely speculative.
(Hn 6) The element of loss of profits, or damage measured by the difference between the cost of ice cream purchased elsewhere, and the cost of manufacture, should not have been submitted to the jury. Among other reasons, it was obviously contemplated that at the time of interchange or replacement there would occur an interval during which ice cream could not be manufactured by the plaintiff. There were readily available several expert mechanics who would and could have installed the unit. As a matter of fact, one of these witnesses, a former employee of the defendant, offered to install it but the offer was refused. It is in point that the plaintiff based his claim for the cost of installation and maintenance upon the estimate of this witness. It was therefore the duty of plaintiff to mitigate or avoid damage by effecting installation.
It is not in point that his reasons for not installing the unit included a fear that such course might impair the warranty thereon. An instruction was refused to the defendant covering this element, and limiting any recovery to the cost of installation and service. It is premature to consider the possibility of a claim under a warranty where no breach has occurred. Instructions given to the plaintiff allowed the jury to consider depreciation in the value of the equipment, the loss of profits, and a general authority to assess damages "in such amount not exceeding the amount sued for as it may have been shown by a preponderance of the evidence the plaintiff sustained."
(Hn 7) Under this record the only issue to be submitted is the cost of installation and servicing by others than the defendant. As stated above, the matter of warranty is not here involved, but is not foreclosed.
Reversed and remanded.
McGehee, C.J., and Alexander, Hall and Holmes, JJ., concur.