Advance Aluminum Castings Corp. v. Davenport

• Decision Date: 10 January 1955
• Docket Number: No. 5-543,5-543
• Citation: 224 Ark. 440,274 S.W.2d 649
• Parties: ADVANCE ALUMINUM CASTINGS CORP., Appellant, v. James C. DAVENPORT, Appellee.
• Court: Arkansas Supreme Court

Page 649

274 S.W.2d 649

224 Ark. 440

ADVANCE ALUMINUM CASTINGS CORP., Appellant, v. James C. DAVENPORT, Appellee.

No. 5-543.

Supreme Court of Arkansas.

Jan. 10, 1955.

Rehearing Denied Feb. 14, 1955.

A. U. Tadlock, Jonesboro, for appellant.

Bonny McCourtney and Claude B. Brinton, Jonesboro, for appellee.

WARD, Justice.

On or about September 10, 1950 appellee contracted to buy certain Miracle Maid Cooking Utensils amounting to the total purchase price of $172.74 from appellant through its agent, a Mr. Ford. Twenty dollars were paid to Ford soon after the purchase was made, and when the goods were received about the middle of October appellee paid the further sum of $35.37. The note which appellee signed called for the balance to be paid in ten monthly installments of approximately $12 each. Only one payment of $12 was made by appellee and that was on or about December 1, 1950, leaving an unpaid balance of $105.37.

This action was brought by appellant to recover from appellee the balance of the purchase price in the amount stated above. Appellee answered with a general denial, and by way of cross-complaint stated that he had been damaged because of fraud and misrepresentation practiced by the defendant. The acts of fraud and misrepresentation were specifically stated to be that: Ford, as agent for appellant, falsely represented that the purchased articles were fit for household use and that they were of the value stated in the sales contract, but in fact said articles were worthless and unfit for household use and of no value to this defendant. It was further stated by way of cross-complaint, that, by said fraud and misrepresentation, appellee had paid to appellant the sum of $67.37 and that he was entitled to have judgment against appellant for said amount.

At the close of all the testimony appellant filed a motion for a directed verdict for the reason appellee had ratified the sale by making the December payment of $12 after having knowledge of any defects in the utensils, and thereby waived any fraud that might have been practiced on him by appellant or its agent. The motion was overruled, and the cause was submitted to a jury which found for appellee. Accordingly, judgment was rendered against appellant for costs.

Appellant insists that the court erred in refusing to grant his motion for a directed verdict in the amount sued for, and we agree with this contention.

It is not denied by appellee that he signed the note or that there is a balance due thereon of $105.37. His only defense is that he was induced by fraudulent representations to buy and the utensils were not fit for household use.

It is undisputed also that appellee received the utensils, used them, and that after knowledge of their unfitness he made a payment of $12 on the purchase price some thirty days later, without any complaint to appellant. In fact there is no positive evidence of any complaint until May 24, 1951--some seven months after the utensils were received and used. The testimony in this respect is set out below.

Mrs. Davenport stated that she used the utensils a couple of months before she gave up.

'Q. Now then, why didn't you keep paying for it? A. I couldn't see where it was worth it.'

Mr. Davenport, appellee, testified:

'Q. After you received that merchandise did you try--did your wife try to use it? A. Yes, sir.

'Q. And did you make another payment on it after you received it? A. Yes, sir.

'Q. Now, before you sent that payment had you noticed anything wrong with this equipment? Had it been doing what Mr. Edmund told you it would do, or did you notice? A. Yes, sir; I didn't like it at that time.

'Q. You didn't like it at that time, but did you go ahead and send another payment? A. I did.'

Four letters from appellee to appellant were introduced in evidence, showing appellee's dissatisfaction with the utensils and offering to return them. The first or earliest letter was dated May 24, 1951. In regard to this letter appellee testified:

'Q. When was it you first wrote the company and told them you were not satisfied with the cook-ware? A. Some months later.

'Q. Well was it in May, 1951. A. It could have been.'

Under the above factual situation it appears that appellee waived any possible fraud which might have induced him to buy the allegedly unfit merchandise, and it was error for the trial court to refuse to instruct a verdict for appellant.

A similar issue was considered, and decided adversely to appellee here, in Kern-Limerick, Inc., v. Mikles, 217 Ark. 492, 230 S.W.2d 939, 943. It was there contended by Mikles that he was induced...