Bettman-Dunlap Co. v. Gertz Bros

• Decision Date: 24 March 1924
• Docket Number: 23785
• Citation: 99 So. 384,136 Miss. 160
• Court: Mississippi Supreme Court
• Parties: BETTMAN-DUNLAP CO. v. GERTZ BROS

99 So. 384

136 Miss. 160

BETTMAN-DUNLAP CO. v. GERTZ BROS

No. 23785

Supreme Court of Mississippi

March 24, 1924

Division B

January 1, 1920

1 EVIDENCE. Oral promises by salesman at time order for merchandise taken held inadmissible.

Where a merchant gives a written order containing a stipulation "This order is given subject to acceptance by the seller at their office. The terms on which these goods are sold are printed on this blank or written by the salesman whose name is signed to this order. Our terms are a material part of our prices and must be strictly adhered to. These terms are absolute and we recognize no verbal agreements. No alterations can be made after goods are cut. This is a definite order and is not subject to countermand" ---and where the buyer relies on correspondence between him and the seller to show an agreement to reduce prices if conditions existing at the time of the shipment warrant it as a defense for refusal to accept the goods shipped, it is error to admit verbal promises made by the salesman at the time the order was taken.

2 SALES. Instruction as to price revision agreement disapproved.

Under the facts contained in the record in this case it is error to give the defendant the following instruction: "The court instructs the jury for defendants, that if they believe from the evidence that the salesman of Helmers, Bettman & Company induced defendants in April, 1920, to give him orders for goods not signed by them, for fall delivery, with the express condition that, should there be a break or decline in prices before shipment, existing prices would be revised and adjusted according to market conditions and prices; and, if the jury further believe from the evidence that said defendants, in order to be assured of protection against declining prices, wrote to Helmers, Bettman & Co., June 18, 1920, to know the attitude of the house as to such decline, and received a reply bearing date June 22, 1920, which confirmed the agreement of their salesman, that prices would be revised according to market conditions, and that defendants, being thus assured, in July gave another order for goods as evidence that on receipt of the invoices of said goods in the fall defendants discovered that said plaintiffs had wholly failed to revise prices, according to market conditions, and had invoiced them so high that defendants, in the event they received the goods, would not be able to meet the competition, but would sustain a heavy loss, and thereupon defendants notified Helmers, Bettman & Co. of these facts, and that if the prices were not revised according to previous contract the goods would not be received, and finally fixed a time within which plaintiff must revise prices according to market conditions, or defendants would not receive the goods, and that said plaintiffs refused to change and revise said prices, and that thereupon defendants did refuse to receive goods, and that they were in due course returned to Helmers, Bettman & Co., and are now in the hands of plaintiff in this suit, who claims to be the successor of Helmers, Bettman & Co., then the jury will find for the defendants."

3. SALES. Instruction as to price revision agreement approved.

Under the facts contained in this record the plaintiff should have been given the following requested instruction: "The court instructs the jury that, if they believe from the evidence in this case that Helmers, Bettman & Co., did write to defendants on June 22, 1920, that 'We are now pleased to be able to report that our prices will be revised for fall in accordance with market conditions, as we find them, at the time of shipment,' and defendants did rely thereon, they are still liable to plaintiffs if the jury believe from the evidence plaintiff did revise their prices as they [plaintiffs] found them at the time of shipment; that in that event this interpretation is binding on the defendants, no matter what the real meaning might have been thought by defendants."

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Holmes county, HON. S. F. DAVIS, Judge.

Action by the Bettman-Dunlap Company against Gertz Bros. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

G. H McMorrough, Fulton Thompson and R. H. & J. H. Thompson, for appellant.

Teat & Odom and Boothe & Pepper, for appellee.

[NOTE:--No briefs now on filed for either side.]

OPINION

ETHRIDGE, J.

On April 18, 1920, Gertz Bros. gave to Helmers, Bettman & Co., a partnership, an order for certain shoes, the order being taken by a salesman of Helmers, Bettman & Co. at Greenwood, Miss., and transmitted by the salesman to the said Helmers, Bettman & Co. at their place of business, Cincinnati, Ohio. The order contains a condition printed as follows:

"Notice. This order is given subject to acceptance by Helmers, Bettman & Co., at their office in Cincinnati. The terms on which these goods are sold are printed on this blank, or written by the salesman selling the goods, whose name is signed to this order. Our terms are a material part of our price, and must be strictly adhered to. These terms are absolute, and we recognize no verbal agreements. No alterations can be made after goods are cut. This is a definite order, and is not subject to countermand."

Later, in July, 1920, another order was given for another shipment containing the same stipulations. These orders were not signed by the purchasers, but were sent in by the salesman to the manufacturers.

On June 20, 1920, Gertz Bros. wrote to Helmers, Bettman & Co. the following letter:

"We have received letters from a number of houses from whom we buy shoes that prices of shoes have declined and giving us the benefit of the reduction. They also advise us that should there be any further decline between now and October first, we will be protected. Some of the shoe houses wrote us that whatever decline there will be between now and October first, we will be given credit for.

"Now gentlemen, our business relations have been the most pleasant, and in fact we must say that you are one of the nicest houses we have ever dealt with. At the same time this is a matter of business with us, and you know yourself, that should the market decline two or three dollars on a pair of shoes, we would not be in a position to meet competition with your shoes, unless you give us a guarantee against a decline in the market between now and October first.

"Please let us hear from you at once regarding the matter, and oblige."

To which letter Helmers, Bettman & Co. replied as follows on June 22, 1920:

"Your letter of the 18th is before us asking what our attitude will be towards prices for fall. You have already received our letter of June 7th, and we take particular pride in the fact that we were probably leaders in the present price reductions, for our original reductions were made last March. That same letter also told you that if it were possible for us to buy our leather at a price under that figured in our shoes that our customers would receive the entire benefit from such an advantageous purchase.

"We are now pleased to report that our prices will be revised for fall in accordance with market conditions as we find them at the time of shipment. This is as...