Biston Coffee Co. v. G. T. Cazort & Co.

• Decision Date: 22 October 1923
• Docket Number: (No. 192.)
• Citation: 255 S.W. 36
• Parties: BISTON COFFEE CO. v. G. T. CAZORT & CO.
• Court: Arkansas Supreme Court

255 S.W. 36

BISTON COFFEE CO. v. G. T. CAZORT & CO.

(No. 192.)

Supreme Court of Arkansas.

October 22, 1923.

Rehearing Denied November 19, 1923.

Appeal from Circuit Court, Crawford County; Jas. Cochran, Judge.

Action by the Biston Coffee Company against G. T. Cazort & Co. Judgment for defendant, and plaintiff appeals. Affirmed.

I. J. Friedman and Jno. D. Arbuckle, both of Ft. Smith, and C. M. Wofford, of Van Buren, for appellant.

Chew & Ford, of Ft. Smith, for appellee.

HUMPHREYS, J.

This suit was brought by appellant against appellee in a magistrate's court upon an open account for $110.58 for coffee sold to appellee on the 13th day of November, 1920.

Appellee interposed the defense that it was entitled to a credit for more than the amount sued for on account of certain bags of coffee returned to appellant at the instance of its agent.

The cause was tried in the magistrate's court and appealed to the circuit court of Crawford county, where a trial was had before a jury, which resulted in a verdict and judgment in favor of appellee, from which is this appeal.

The undisputed testimony in the case showed that both bills of coffee were sold to appellee by a traveling salesman of appellant. The first bill, consisting of two bags of Special Peaberry coffee, was sold by P. W. Buxton on the 27th day of September, 1919, and amounted to $127.50. This bill was paid in a short time after the coffee was received and before same had been inspected. Thereafter P. W. Buxton sold several other bills of coffee to appellee which were also paid. John Thompson then succeeded P. W. Buxton as traveling salesman for appellant, who called at appellee's place of business in Mulberry, Ark., on the 13th day of November, 1920, for the purpose of selling more coffee to it. He found W. F. Brigance and C. C. Jeffers, two of appellee's clerks, making an inspection of the two bags of Special Peaberry coffee purchased by appellee on the 27th day of September, 1919. The coffee had been set aside and never inspected until that time. Thompson informed them that he represented appellant, and without knowing or ascertaining when the two bags of coffee had been bought, asked what appellee paid for the coffee, and when told, said it was not the kind of coffee bought and for them to return it to appellant and take credit for the purchase price thereof. On account of these directions appellee bought the bill of coffee sued upon. The invoice of both shipments of coffee contained the following provision:

"By accepting this invoice you accept terms and conditions as specified. This bill becomes due immediately when purchaser suspends payment, sells out, removes, or is closing out, we do hereby guarantee that the articles of food listed herein are not adulterated or misbranded within the meaning of the federal Food and Drugs Act, June 30, 1906, as amended. Our responsibility ceases when Transportation Co. signs `Received in good order.' No claims allowed of any nature unless made within five days of receipt of goods."

The two bags of Special Peaberry coffee were returned in accordance with the direction of the agent, and a correspondence ensued between appellant and appellee relative thereto. Appellant claimed that the coffee returned was the kind and quality purchased, and appellee that it was not. In one of appellant's letters the following paragraph appears:

"We call your attention particularly to the fact that you have received from us several orders since you received the above-mentioned coffee in question. Also our salesman has...