McClave-Brooks Co. v. Belzoni Oil Works

Citations

• 113 Miss. 500
• 74 So. 332

Syllabus

<p>1. Sales. Action -for price. Pleading.</p> <p>In a suit for the purchase price of an outfit,- to be used under a boiler, which outfit was guaranteed to reduce defendants’ coal bills and increase the capacity of the boiler, it was permissible for the plaintiff to allege in its declaration, that the wrong of defendants prevented it from making good its guarantee by demonstra- . tion.; that it would have performed its contract and made good its guarantee but for the failure and refusal of the defendant to make the test for the period of time named in the contract under the direction and instruction of the plaintiff, and the court erred in striking out this count of the declaration.</p> <p>2. Pleading. Objection. Motion to strike. Demurrer.</p> <p>A motion to strike from the files a count in a declaration was an improper way to raise the objection to the pleadings but if the defects appeared upon the face, a demurrer should have been taken and the plaintiff given an opportunity to amend, if advised that such course was proper.</p> <p>3. Sales. Evidence. Admissions of corporate officer.</p> <p>In a suit for the purchase price of an outfit sold the defendant corporation for use under its boiler, it was error to refuse to admit the declaration of defendant’s manager that the equipment was giving satisfaction and was increasing the boiler capacity of their plant, made to a third party; since defendant, being a corporation, must act through its agents and the declaration of its manager, under the circumstances disclosed in this record was a declaration of the corporation itself in legal effect.</p> <p>4. Sales. Pleading. Performance of contract. Statute.</p> <p>Under Code 1906,' section 769, so providing, it is sufficient to aver generally that the plaintiff performed the conditions on its part, and it devolved upon- the defendant by its pleadings, to assign in what particulars there was a failure on the part of the plaintiff to perform to which pleas of the defendant pla