American Standard Jewelry Co. v. Hill

• Decision Date: 29 March 1909
• Citation: 117 S.W. 781,90 Ark. 78
• Parties: AMERICAN STANDARD JEWELRY COMPANY v. HILL
• Court: Arkansas Supreme Court

117 S.W. 781

90 Ark. 78

AMERICAN STANDARD JEWELRY COMPANY v. HILL

Supreme Court of Arkansas

March 29, 1909

Appeal from Sebastian Circuit Court; Daniel Hon, Judge; affirmed.

Judgment affirmed.

C. T Wetherby, for appellant.

1. The motion for continuance was not verified, and it was error to require appellant to admit the testimony of Hill or submit to a continuance. Kirby's Digest, § 6173.

2. The contract is severable, and the 6th instruction requested by appellant should have been given. 88 S.W. 842.

3. No warranty is implied where goods are sold by sample, except that they shall be equal in quality to the sample. The burden was on appellees, and their 2d requested instruction should not have been given. 11 Enc. of Ev. 526; 68 S.W. 594; 83 S.W 230.

Joseph M. Spradling and George W. Dodd, for appellees.

1. Hill was sick and unable to attend. The court might properly have granted a continuance for that reason, without giving appellant the option to admit his testimony. No abuse of discretion.

2. True, the contract shows each item has a separate price, but it is for a complete assortment, and contains no such warranty and agreement to inspect at once on delivery as is contained in the contract sued on in Duffie v Pratt, 76 Ark. 74. This contract is entire and not severable. 11 Enc. of Ev. 528 and cases cited; 2 Parsons on Contracts, 9th Ed., 672; Id. 4th Ed., 31; 5 Met. 452; 22 Ark. 158.

3. The court properly charged the jury that the burden was on appellant to prove that the goods were as represented. 24 Am. & Eng. Enc. of L. 2d Ed. 1131. Warranty is implied where no opportunity is afforded for inspection before delivery. 73 Ark. 470; 83 Ark. 15; 11 Enc. of Ev. 531; 22 Tex. 270; 100 Ga. 588; 48 Ark. 325; 53 Ark. 155; 72 Ark. 343; Benjamin on Sales, 656.

OPINION

MCCULLOCH, C. J.

The plaintiff, American Standard Jewelry Company, instituted this action at law against R. J. Hill & Son to recover the price of a lot of jewelry sold and delivered to them under written contract.

The contract, after setting forth an itemized list of the articles sold, giving separate prices of kind, aggregating the total sum of $ 180, contains the following clauses:

"Warranty. Any article of jewelry shipped by us, which fails to give entire satisfaction any time within five years from date of purchase, must be returned to us, and we will repair or furnish a new duplicate article in its place.

"Goods Exchanged. Any jewelry shipped by us not selling readily or which may be unsatisfactory for any cause may be exchanged for any jewelry in our stock, if returned to us for exchange within one year from date of purchase.

"Important Conditions. In consideration of the conditions under which we sell our goods, we cannot accept countermands, and the purchaser hereby agrees not to countermand this order, either before or after it is received by us. This contract contains all the condition and agreements between the parties, and no agreement is binding unless expressed in original order received by us. Purchaser hereby acknowledges receipt of duplicate hereof. Jewelry is shipped by express, showcase by freight from distributing point or factory, at our option, and when we deliver goods to transportation company in good order they become the property of the purchaser, subject to all the conditions and safeguards contained herein, and can not be returned for credit. Purchasers pay all transportation charges. All goods are shipped at our earliest convenience.

"Sales Guarantied. We guaranty that the purchaser will sell a quantity of jewelry in one year which at retail prices will equal at least one and one-half times the amount of this order. If the sales are less than the above, we agree to buy back for cash, at the purchase price, all goods bought of us and remaining on hand at the end of the year. This guaranty is given on condition that purchaser will keep this jewelry displayed for sale one year in the show case furnished by us, use best efforts to push the sale of the same, and furnish us every month, between the first and fifth of the month, an itemized list of all goods on hand.

"Our guaranty of sales does not imply that we ship our goods on consignment to be paid for as sold. For amount and time of payments, see the following terms of settlement:

"All long time accounts must be closed by acceptances. This order is payable in six equal payments, due in two, four, six, eight, ten and twelve months from date of invoice, provided purchaser sends us promptly on arrival of jewelry his six acceptances for amounts and time of above payments, payable to our order at Detroit, Michigan.

"Cash. If acceptances are not sent as above, terms are cash; five per cent. discount if paid in full promptly on arrival of jewelry."

It is alleged in the complaint that the jewelry and showcase were shipped to the defendant by common carrier in accordance with said contract, and that defendant had received the jewelry but refused to execute the acceptances or pay the price in accordance with the terms of the contract.

Defendants answered as follows: "That the contract with an agent of the plaintiff to purchase certain articles of jewelry mentioned and cited in the written contract exhibited as a part of the complaint. That the said agent fraudulently and falsely represented to defendants that said jewelry was of the kind, character and quality specified in said contract and would readily sell to defendant's customers; that defendants relied upon representations of the said agent, and that the same were fraudulent, and that the jewelry was made of cheap metals and was not of the kind, character and quality specified in said contract, and that defendants refused to pay for same and offered to return same to the plaintiff and in this answer offer to return the same. The defendants charge that the plaintiff well knew that said jewelry was not what it was represented to be; and that it was cheap, shoddy and almost valueless, and to put the same upon the market would be detrimental to defendant's business as merchants; that it would be a fraud upon defendant's customers."

A trial before jury resulted in verdict and judgment in favor of defendants, and the plaintiff appealed.

The first assignment of error is that the court improperly required the plaintiff either to submit to a postponement of the case on account of the sickness of R. J. Hill, one of the defendants, or to admit before the jury that he would testify, if present, to the state of facts set forth in the motion for continuance. It is stated in the motion that said defendant was sick and unable to attend the trial, but would, if present, testify to said facts. The motion was not verified by affidavit, and it is contended that it should not have been granted. Even if a decision of the court granting a continuance of a case could, under any circumstance, be held to be reversible error, it is not error to postpone a case on account of unavoidable absence of one of the parties, especially where such party is a material witness. That is a matter within the discretion of the court, and no error of the court can be predicated upon it when the postponement is granted, even without a strict showing in accordance with the statute regulating continuances on account of the absence of witnesses.

Defendants adduced testimony tending to show that plaintiff's traveling salesman who made the sale to defendants showed them samples of some of the jewelry at the time he made the sale, and that the jewelry shipped to them did not come up to the...