Bray Clothing Co. v. McKinney

• Decision Date: 12 April 1909
• Citation: 118 S.W. 406,90 Ark. 161
• Parties: BRAY CLOTHING COMPANY v. MCKINNEY
• Court: Arkansas Supreme Court

118 S.W. 406

90 Ark. 161

BRAY CLOTHING COMPANY v. MCKINNEY

Supreme Court of Arkansas

April 12, 1909

Appeal from Cleveland Circuit Court; Henry W. Wells, Judge affirmed.

Judgment affirmed.

Appellant pro se.

1. There is postitive testimony that the goods were delivered to the carrier directed to the appellee at Rison, Ark., and none to the contrary. Delivery to the carrier is delivery to the consignee. 53 Ark. 196.

2. The second instruction is erroneous in assuming that no invoices of the goods were sent, and because it is in conflict with the first instruction. 25 S.W. 505; 71 Ark. 38; 59 Ark. 98.

Appellee pro se.

Since appellee did not order the goods, except the quantity for which he received invoice and for which he paid, delivery to the carrier did not make him liable, but the goods under such circumstances remained the property of the appellant until delivered to and accepted by appellee.

OPINION

FRAUENTHAL, J.

The plaintiff, the Bray Clothing Company, is a mercantile corporation located at Louisville, Ky.; and the defendant is a merchant doing business at Rison, Ark. The plaintiff instituted this suit against defendant by filing an account with a justice of the peace for a balance which it claimed that defendant owed it for goods sold and delivered to defendant. Upon the trial in the court of the justice of the peace, a judgment was rendered in favor of the defendant, from which the plaintiff appealed to the circuit court; and on the trial de novo in that court a verdict was returned in favor of the defendant.

The plaintiff contends that on December 2, 1905, the defendant made an order for certain goods through its traveling salesman; but under the testimony it does not appear that a written order was made for the goods, so that it was only a verbal order given to the salesman. The plaintiff claims that it shipped a part of the goods to defendant on January 29, 1906, and that it shipped the balance on May 3, following. The controversy is over the amount of the goods that were shipped on January 29, 1906. The evidence on the part of the plaintiff tended to prove that the plaintiff delivered to the common carrier at Louisville, Ky., a package of goods directed to the defendant at Rison, Ark., and in the package were goods amounting to $ 97.50, but made out in two bills, one of $ 66.00 and one of $ 31.50; and that they were made out in two bills because there was a difference in the amount of the cash discount allowed on the goods of the two accounts or bills.

The evidence of the defendant tended to prove that the package arrived unbroken, and only contained goods amounting to $ 66. It is conceded that defendant has paid that amount, as well as the entire amount of the account for the shipment of May 3d. The defendant testified that the goods amounting to $ 66 and the goods covered by the shipment of May 3d were all the goods that he made the order for in December, and claimed that he did not make any order for the goods amounting to $ 31.50 and denied receiving same at any time.

Upon the trial of the case the court gave two instructions, but the appellant has failed to set them out in the abstract; and therefore the presumption is that these instructions were correct. Carpenter v. Hammer, 75 Ark. 347, 87 S.W. 646; Koch v. Kimberling, 55 Ark. 547, 18 S.W. 1040; May v. Dyer, 57 Ark. 441, 21 S.W. 1064; Mine LaMotte L. & S. Co. v. Consolidated Anthracite Coal Co., 85 Ark. 123, 107 S.W. 174.

It is contended by the plaintiff that it delivered to the common carrier at Louisville, Ky., a package containing goods amounting to $ 97.50 and duly addressed to the defendant at Rison, Ark.; and when said package arrived at Rison, even if it actually only contained goods amounting to $ 66, still the defendant...