Alling v. John V. Lee & Sons

• Decision Date: 18 April 1921
• Docket Number: (No. 290.)
• Citation: 230 S.W. 1
• Parties: ALLING v. JOHN V. LEE & SONS.
• Court: Arkansas Supreme Court

Page 1

230 S.W. 1

ALLING v. JOHN V. LEE & SONS.

(No. 290.)

Supreme Court of Arkansas.

April 18, 1921.

Rehearing Denied May 9, 1921.

Appeal from Circuit Court, Jackson County; Dene H. Coleman, Judge.

Action by C. A. Alling against John V. Lee & Sons. Judgment for defendants, and plaintiff appeals. Affirmed.

C. W. Norton, of Forrest City, and John W. & Jos. M. Stayton, of Newport, for appellant.

Gustave Jones, of Newport, for appellees.

HUMPHREYS, J.

Appellant instituted suit against appellees in the Jackson circuit court to recover $1,093.50 on account of an alleged balance due on a loan made by him to appellees for the purpose of buying cotton seed, which was to be repaid by shipments of cotton seed, on basis of prime seed at $75 per ton.

Appellees filed answer, denying they entered into a contract with appellant to repay a loan by the shipment of cotton seed to appellant on a basis of prime seed at $75 per ton, but alleging that they entered into a contract with appellant, through his agent, J. E. Doherty, to repay advances by shipping their whole output of seed from their gin at Erwin's Switch for the season of 1919, at such prices as any other mill in the vicinity would pay for such seed f. o. b. switch at said station; that, pursuant to the agreement, they shipped three cars of seed to appellant, for which he failed to give them credit at the prices agreed upon; that, on account of the breach of the contract by appellant, they were damaged above the amount advanced by appellant in the sum of $4,016.29; and asked that their answer be treated as a cross-complaint and that they have judgment for the amount alleged as damages.

Appellant filed a reply, denying the material allegations in the cross-complaint. The cause was submitted to the court sitting as a jury, upon the pleadings and evidence, which resulted in a judgment in favor of appellees for $7.40.

The facts are, in substance, as follows:

Appellant operated a cotton oil mill in Forrest City under the style of "Forrest City Oil Mill Company," and appellees, a partnership consisting of John V. Lee and his two sons, Griffin Lee and Preston Lee, owned and operated a farm and gin at Erwin, a station on the Rock Island railroad, near Newport, in Jackson county. During the cotton season, advances were made by appellant to appellees, which were to be repaid with seed. Total advances in the sum of $6,500 were made, and three cars of seed were shipped to be applied thereon. The last advance of $3,000 was made on November 26, 1919, and the third, or last, car of seed was shipped on the 27th of the same month. At that time appellant had procured a chemical analysis of the first two shipments of seed, and, upon a base price of $75 per ton, allowed appellees $61.06 per ton on the first car, and $55.20 per ton on the second car, leaving a balance due appellees at that time of $82.83 after deducting the percentages indicated by the chemical analysis aforesaid. Appellant mailed appellees the chemical analysis of each car, together with a check for the amount of $82.83, which check is as follows:

"Forrest City, Ark., Nov. 27, 1919, No. 1502. Pay to the order of John Lee & Sons (N. P. 8L-111) $82.83 eighty-two dollars eighty-three cents dollars. [Signed] J. L. Harrison, Cashier. To the First National Bank, Forrest City, Ark."

On December 4th thereafter, appellees wrote to appellant that they could have gotten from $70 to $73 per ton for the character of seed shipped to him, and that the amount allowed was $10 less on the first car, and $11.80 less on the second car than they had paid for the seed. The following are exact excerpts from the letter:

"We explained to your agent here, Mr. Doherty, that we had to gin and pay for seed what the other ginners pay, and he said his company could pay just what any company could pay, and would take care of our interest."

"But if you can't do any better, why, please forward the bill of lading for the third car of seed which you have by now. I know we can get a better price than you are giving, and we as soon as we hear from you will relieve the $3,000 just forward us."

At the time appellant received the letter, he had unloaded the third, or last, car, and could not return it according to the request of appellees. On December 6th, following, appellant answered as follows:

"We are in receipt of your letter of the 4th in regard to the two cars of seed which you shipped us recently. We regret exceedingly that you have lost money on these two cars, but want to assure you that we paid you the full value of them.

"We note that you contend that our Mr. Doherty...