Bridges v. Shapleigh Hardware Co.

• Decision Date: 20 February 1933
• Docket Number: 4-2872
• Citation: 57 S.W.2d 405,186 Ark. 993
• Parties: BRIDGES v. SHAPLEIGH HARDWARE COMPANY
• Court: Arkansas Supreme Court

57 S.W.2d 405

186 Ark. 993

BRIDGES v. SHAPLEIGH HARDWARE COMPANY

4-2872

Supreme Court of Arkansas

February 20, 1933

Appeal from Clay Circuit Court, Western District; G. E. Keck, Judge affirmed.

Judgment affirmed.

Oliver & Oliver, for appellant.

Ward & Ward, for appellee.

OPINION

MEHAFFY, J.

The appellant is a retail merchant at Corning, Arkansas, and the appellee is a wholesale merchant in St. Louis, Missouri. About August, 1929, the appellant wanted to purchase a number of radios to sell to his country trade. Mr. Bond was a traveling salesman for appellee, and appellant ordered through this salesman, Bond, two battery sets, which were received and sold, and proved entirely satisfactory. The appellant then ordered ten other sets of the same kind, and sold some of them, but they were unsatisfactory. Appellant then asked permission to return the radios, which the appellee refused. He then made some efforts to repair the radios or adjust them so that they would perform, and he employed a radio expert, but the expert was unable to adjust them or rebuild them.

Appellant made some payments, paying at one time $ 268, and at another time $ 75, leaving a balance of $ 290, for which suit was brought in the justice of the peace court.

The appellant filed answer, in which he alleged that the radios were worthless, and that he did not owe anything except $ 14 for some other merchandise, and offered to confess judgment for this amount. The case was tried, and judgment rendered against appellant.

An appeal was prosecuted to the circuit court, where it was tried before the circuit judge, sitting as a jury, and the trial resulted in a judgment in favor of appellee for the amount sued for. The case is here on appeal.

Two witnesses testified on behalf of appellee about the sale of the radios, the price and the payments, and as to the balance due. The appellant testified that appellee first sent him one radio set, and that he, expecting to get similar sets and ones that would perform similarly, ordered the other radios for the payment of which this suit is brought. He received the radios and sold two of them, but they were returned to him because they did not perform. He then employed Luster King, a radio man, but King was unable to do anything with them. Appellant could not sell the sets because they would not perform. He bought batteries and tubes with the sets, and sold them and remitted to appellee, all except $ 14, for which he offered to confess judgment. Mr. Bond, appellee's salesman, called on him, and he paid him $ 75 for batteries and tubes, and told him he would pay the balance in a short time. He had never offered to pay a penny on the account for the radio sets that would not perform; that he was able to sell one of the radios after working with it repeatedly, and able to make it perform to a point where it stayed sold; that the radios were worthless. He never did tell appellee to send a man to fix the radios, for the reason that before they arrived it was evident from the crop conditions, and from the drouth, and also from the fact that the radios were still cheaper than the year before, that he would be unable to sell the radio sets that fall. If the radio sets had been in marketable condition when he purchased them, he could have sold them, but it was a different story in the fall of 1930. These sets were intended for sale to farmers, and, since it was evident in the summer of 1930 that there would be no crops, he knew he could not sell them; he could have sold them in 1929 if they had been marketable.

Luster King testified that he had had experience with radio sets, and he tried to adjust these, and was unable to make them so they would perform with any degree of satisfaction. There was something lacking which made it impossible to rectify them. They had very little value, if any market value at all.

This was all the evidence, except the correspondence. Appellee wrote numerous letters to appellant, which appellant ignored. It wrote to him on August 16 that it had passed for shipment a day or two prior an order for ten radios, amounting to approximately $ 500. It asked in the letter for more information about his business. It again wrote him on August 20th. On August 21 appellant wrote appellee about his financial condition. On November 9, 1929, appellee again wrote appellant, calling his attention to his overdue account of $ 568. On December 17, 1929, appellee again wrote appellant acknowledging receipt of $ 268, and urging him to pay the balance. It again wrote him on January 13, 1930, calling his attention to his account of $ 312, and asking for payment, and again on February 4, 1930, it wrote him about his account. Again on February 25, 1930, appellee wrote appellant urging him to pay his account. On March 11 it wired him that it must have settlement. March 24, 1930, it again wrote him about his account, and on March 25, 1930, appellant wrote appellee, complaining about the defects in the radios, and that they would not stay sold, but in the letter appellant stated that he found one of the ten that performed, and finally made a sale of it. He also stated in this letter that he would be lucky and satisfied if he could get enough money out of them to break even.

On April 3, 1930, appellee again wrote appellant and again on April 14, urging the payment of his account, and wired him on April 25 and again on May 1st. On May 8, 1930, appellee again wrote appellant, calling his attention to his account, and on May 8 appellant wrote to appellee, complaining somewhat about the radios, stating that, if appellee...