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