Opinion
No. 36438.
May 5, 1947.
1. APPEAL AND ERROR. Corporations.
Defendant had the burden of proving non-payment of privilege tax as a bar to maintenance of action by foreign corporation to recover possession of electrical appliances upon which corporation had made floor plan advancements and in absence of proof or sufficient offer of proof of such non-payment for a particular year, case must be reviewed as if there was no default in privilege tax for such year (Code 1942, secs. 9341-9350, 9346).
2. CORPORATIONS.
Non-payment of privilege taxes for previous years did not preclude foreign corporation from maintaining action in courts of State in regard to business done in the State during year in which neither proof nor offer of proof showed default in payment of tax (Code 1942, secs. 9341-9350, 9346).
APPEAL from the circuit court of Hinds county. HON. H.B. GILLESPIE, Judge.
Henry Edmonds and Charles M. Gordon, both of Jackson, for appellant.
There is no title or interest in appellee to the fixtures in suit, to form the basis for a right of immediate possession.
Clark v. Holden, 191 Miss. 7, 2 So.2d 570; Bell v. Smith, 155 Miss. 227, 124 So. 331; Johnson v. Sanders, 148 Miss. 472, 114 So. 334; Frizell v. White, 27 Miss. 198.
There was no consideration for the notes or bills of sale executed by appellant to Commercial Industrial Bank.
Lindsey v. Sellers, 26 Miss. 169; Wren v. Hoffman, 41 Miss. 616; Robertshaw v. Hanway, 52 Miss. 713; Sykes v. Moore, 115 Miss. 508, 76 So. 538; Campbell v. Brown, 6 How. (7 Miss.) 106; Pollen v. James, 45 Miss. 129.
There was no valid delivery of the bills of sale and notes executed by appellant.
Reese v. State, 192 Miss. 147, 5 So.2d 236; Love v. Mayor and Board of Aldermen of Yazoo City, 166 Miss. 322, 148 So. 382; Code of 1942, Sec. 57.
There was no default in the notes in suit, even if the same should be held valid evidences of the debt owed by appellant to appellee, and the court below erred in refusing to admit evidence of a universal custom which governed the dealings of the parties.
Shackleford v. New Orleans, J. G.N.R. Co., 37 Miss. 202.
The court below erred in refusing to permit the introduction of any evidence by the appellant, or the cross-examination of any witness by his attorney, with reference to unpaid and delinquent privilege taxes owed by the appellee to the State of Mississippi which accrued prior to the second quarter of 1946 under the provisions of Chapter 3, Title 37, Volume 7, Mississippi Code of 1942, and in holding as a matter of law that non-payment of such taxes, for the period from the fourth quarter of 1942 to the second quarter of 1946, and the delinquency therefor and therein at the time of making the contracts in suit did not and does not under the express language of Sections 5344, 9346 and 9349 of said Code of 1942, bar appellee from the courts of this State, and from prosecuting this suit in particular.
Bohn v. Lowry, 77 Miss. 424, 27 So. 604; Woodson v. Hopkins, 85 Miss. 171, 37 So. 1000; Quartette Music Co. v. Haygood, 108 Miss. 755, 67 So. 211; Peterman Construction supply Co. v. Blumenfeld, 156 Miss. 55, 125 So. 548; Wiley Electric Co. v. Electric Storage Battery Co., 167 Miss. 842, 147 So. 773; Marx Bensdorf v. First Joint Stock Land Bank of New Orleans, 178 Miss. 345, 173 So. 297; Case v. Mills Novelty Co., 187 Miss. 673, 193 So. 625; Newell Contracting Co. v. State Highway Commission, 195 Miss. 395, 15 So.2d 700; Stone v. General Contract Purchase Corp., 193 Miss. 301, 7 So.2d 806; Stone v. General Electric Contracts Corp., 193 Miss. 317, 7 So.2d 811; Code of 1942, Secs. 5344, 9346, 9348, 9349, 9350.
The actual offer of evidence upon an issue is not necessary to preserve the question for the appellate court if the trial court rules that no proof of that issue will be received.
Martin v. Gill, 182 Miss. 810, 181 So. 849; Gulf, M. N.R. Co. v. Willis, 171 Miss. 732, 157 So. 899; Southern Express Co. v. Hunnicutt, 54 Miss. 566; Levinson v. Cox, 127 Miss. 250, 90 So. 1; Lizana v. Edward Motor Sales Co., 163 Miss. 266, 141 So. 295; Mississippi Cent. R. Co. v. Robinson, 106 Miss. 896, 64 So. 838; Mississippi Utilities Co. v. Smith, 166 Miss. 105, 145 So. 896; Goins v. State, 155 Miss. 662, 124 So. 785; Bradley v. Howell, 161 Miss. 346, 133 So. 660, 134 So. 843; Dupree v. Williams, 158 Miss. 103, 130 So. 93; Anderson v. Anderson, 158 Miss. 116, 130, So. 91; Ferriday v. Selser, 4 How. (5 Miss.) 506; Townsend v. Blewett, 5 How. (6 Miss.) 503; Ouilette v. Davis, 69 Miss. 762, 12 So. 27; Talmadge v. Seward, 155 Miss. 580, 124 So. 791; Deposit Guaranty Bank Trust Co. v. Silver Saver Stores, 166 Miss. 882, 148 So. 367; Sylvania Ins. Co. v. Simmons et al., 158 Miss. 596, 131 So. 94; Constitution of 1890, Sec. 100; 2 R.C.L. 78, 79, Sec. 54; 6 R.C.L. 493, Sec. 7; 3 Am. Jur. 96, Sec. 352, p. 98, Sec. 354, p. 10, Pocket Part, Sec. 354; 3 C.J. 827; 4 C.J.S., Appeal and Error, Sec. 291.
Allen C. Thompson, of Jackson, and Eric Babindreer, of Memphis, Tenn., for appellee.
Appellee had title to the merchandise involved in this action, and had the right to immediate possession thereof.
Draper v. Perkins, 57 Miss. 277; Armstrong v. Greenwich Motors Corp., 116 Conn. 487, 165 A. 598; In re James, Inc., 30 F.2d 555; Habegger v. Skalla, 140 Kan. 166, 34 P.2d 1913; Daniels v. Tierney, 102 U.S. 415, 26 L.Ed. 187; Corbett v. Physicians' Casualty Ass'n, 135 Wis. 505, 115 N.W. 365, 16 L.R.A. (N.S.) 177; Kirk v. Hamilton, 102 U.S. 68, 26 L.Ed. 79; 19 Am. Jur. 634, 650, 661, 678, 682; 14 C.J.S. 578, p. 652, Sec. 47.
There was consideration for the notes and bills of sale executed by appellant.
Commercial Bank of Natchez v. Claiborne, 5 How. (6 Miss.) 301; Graves v. Mississippi A.R. Co., 6 How. (7 Miss.) 548; Trible v. Bank of Grenada, 2 Smedes M. (10 Miss.) 523; Harrison v. Monticello State Bank, 47 Ind. App. 568, 94 N.E. 1020; Utah Nat. Bank v. Nelson, 38 Utah 169, 111 P. 907; 8 C.J. 213, 215; 10 C.J.S. 601, 602, 611, 612, Sec. 151(b).
There was a valid delivery of the notes and bills of sale executed by appellant.
Commercial Bank of Natchez v. Claiborne, supra; Graves v. Mississippi A.R. Co., supra; Trible v. Bank of Grenada, supra; Code of 1942, Sec. 57; 7 Am. Jur.. 809; 10 C.J.S. 512, 514, Sec. 78 (d), (e), p. 1050.
Parol evidence is inadmissible to vary the terms of written instruments like these notes, bills of sale, and trust receipts.
Allen v. Allen, 175 Miss. 735, 168 So. 658; Cole v. Hundley, 8 Smedes M. (16 Miss.) 473; McArthur v. Fillingame, 184 Miss. 869, 186 So. 828; Bank of Lena v. Slay, 176 So. 825, 170 So. 635; Parker v. McCaskey Register Co., 177 Miss. 347, 171 So. 337; State Highway Commission v. Duckworth, 178 Miss. 35, 172 So. 148; Stone v. Grenada Grocery Co., 180 Miss. 566, 178 So. 107; Fornea v. Goodyear Yellow Pine Co., 181 Miss. 50, 178 So. 914; Taylor v. C.I.T. Corp., 187 Miss. 581, 191 So. 60; Grenada Auto Co. v. Waldrop, 188 Miss. 468, 195 So. 491; Stone v. Grenada Grocery Co., 190 Miss. 555, 1 So.2d 229; Cox v. Timlake, 169 Miss. 568, 153 So. 794; Bank of Forest v. Capital National Bank, 173 Miss. 99, 160 So. 578; Postal Telegraph Cable Co. v. Willis, 93 Miss. 540, 47 So. 380; Coral Gables v. Mayer, 271 N.Y.S. 662, 241 App. Div. 340; 32 C.J.S. 786, 811, 814; 3 Jones on Evidence 887, Sec. 465.
The appellee held privilege licenses from the State of Mississippi, as required under the provisions of Title 37, Chapter 3, Volume 7, Code of 1942, having paid all taxes due thereunder; and is authorized to do business in the State of Mississippi and to come into the courts of Mississippi to sue and to be sued.
Levinson v. Cox, 127 Miss. 250, 90 So. 1; Huddleston v. McMillan Bros., 112 Miss. 168, 72 So. 892; Young v. State Life Ins. Co., 91 Miss. 710, 45 So. 706; Sullivan v. Ammons, 95 Miss. 196, 48 So. 244; Bohn v. Lowry, 77 Miss. 424, 27 So. 604; Code of 1892, Sec. 3401, as amended by Sec. 3894, Code of 1906; Code of 1942, Secs. 5319, 5343, 5344, 9343, 9346-9348, 9673, 9690. Laws of 1940, Ch. 110; 37 C.J. 169, 170, 171(b).
Appellant has not preserved by the record for consideration by the appellate court his contention that appellee was in default of privilege taxes, for the reason that appellant did not attempt to introduce any competent evidence in support of his contentions, nor did he make any sufficient offer of proof after objections to his questions were sustained.
Martin v. Gill, 182 Miss. 810, 181 So. 849; Gulf, M. N.R. Co. v. Willis, 171 Miss. 732, 739, 157 So. 899; Lixana v. Edward Motor Sales Co., 163 Miss. 266, 141 So. 295; Dupree v. Williams, 158 Miss. 103, 130, So. 93; Anderson v. Anderson, 158 Miss. 116, 130 So. 91; Talmadge v. Seward, 155 Miss. 580, 124 So. 791; Mississippi Cent. R. Co. v. Robinson, 106 Miss. 896, 64 So. 838; Cases cited under Key Nos. 205, 692, Appeal and Error, Mississippi Digest.
Argued orally by Charles H. Gordon and Henry Edmonds, for appellant, and by Allen C. Thompson and Eric Babindreer, for appellee.
During the first half of the year 1946, appellant was engaged in the business of retailing electric refrigerators and other electric appliances, part of which business was financed by appellee on what is commonly known as "floor plan financing". Appellant became in arrears and appellee instituted its appropriate action to recover possession of the articles upon which it had made floor plan advancements, and on the trial recovered judgment.
Appellant gave notice of affirmative matter to be proved in defense and therein, among others, that appellee is a foreign corporation, had not paid the privilege taxes required by Sections 9341-9350, Code 1942, and that because thereof, and particularly in view of the the provisions of Section 9346, appellee is denied access to the courts of this state to maintain its said action.
On the trial no proof was made of the affirmative defense mentioned in the foregoing paragraph, but appellant says that proof on that issue was offered and that the offer was refused by the trial court. We think it extremely doubtful whether the offer as shown by the record was such as measures up to the requirements as laid down in Martin v. Gill, 182 Miss. 810, 181 So. 849, and the long line of previous cases to the same effect; but if for the purposes of this case it may be said that the offer was sufficient for the taxes of the years 1943, 1944, and 1945, it is clear that there is not enough in the offer in this record by which it could be stretched to include the year 1946. The burden of proof was on appellant on that issue, and there being no proof or sufficient offer of proof for the year 1946, the case must be reviewed as if there was no default in the privilege taxes for that year.
This then raises the question whether any default for the years 1943, or 1944, or 1945, or all of them operated to impose the penalty of disqualification to sue on business done in 1946, — the year in which all of the business here in controversy was done.
This question was answered, we think, many years ago in Anding v. Levy, 57 Miss. 51, 57, 34 Am. Rep. 435. At that time a similar penalty was imposed upon a merchant who had not paid his annual privilege license. The merchant took his license on August 1st of the year involved. A customer had bought goods from him both before and after August 1st, and when sued by the merchant, the customer contended that the merchant was barred from recourse to the courts not only as to sales made before August 1st, but also as to those made after that date. The Court, in response, called attention to the character of the statute as imposing a penalty and the well recognized construction which such statutes must receive, and held that the penalty "applies only to such contracts as were made during the time the trader was in default". So, in the present case, even if appellant had been allowed to prove and had proved default in the privilege taxes for the previous years, that would not have disqualified as regards the business done in the year 1946, in which year there was no default.
We have examined the other contentions made by the appellant and find in them no adequate ground for reversal. Affirmed.