Bunch v. Potts

• Decision Date: 04 February 1893
• Citation: 21 S.W. 437,57 Ark. 257
• Parties: BUNCH v. POTTS
• Court: Arkansas Supreme Court

21 S.W. 437

57 Ark. 257

BUNCH v. POTTS

Supreme Court of Arkansas

February 4, 1893

Appeal from Pulaski Circuit Court, ROBERT J. LEA, Judge.

On March 4, 1890, T. H. Bunch, a commission merchant at Little Rock, Ark., sued Potts Bros., of St. Paul, Minn., before a justice of the peace to recover for a loss caused by defendants' failure to comply with their contract to deliver two car-loads of potatoes; and alleged his damages to be $ 150. He caused an attachment to be levied on the potatoes in the hands of the railway company as the property of defendants. At the trial defendants made a counterclaim for the purchase price of 1200 bushels of potatoes at thirty cents per bushel, making a total of $ 360. Judgment was rendered in the justice's court dismissing the attachment, and plaintiff appealed to the circuit court. In the latter court the cause was tried before the judge without a jury.

The correspondence between the parties, submitted in evidence by plaintiff, show that, on January 23, 1890, plaintiff wired defendants as follows: "Enter us for two cars Fancy Rose potatoes at price named (which was thirty cents), F. O B." On the same day defendants wrote to plaintiff "Your telegram ordering two cars of Rose potatoes received, and for same accept our thanks. As soon as the weather will permit, will get them out and ship them to you but at present the weather is severely cold here--twenty-five to thirty degrees below zero--much too cold to move potatoes." On February 15, plaintiff wrote to defendants as follows: "We wired you last night to please advise us when the potatoes were shipped, and how much there was in the car. We are very anxious to get the potatoes, as we have sold them for seed." On the same day defendants wired plaintiff that the potatoes would be shipped on the following Monday. On February 19, plaintiff wrote to defendants "We received your telegram of the 15th saying that the potatoes would be shipped on Monday. We also received your letter under date of the 7th, saying that you were loading potatoes and that they would go forward at once. You have placed us in a very bad attitude with our friends in regard to potatoes. It strikes us that it would be just as easy to tell the truth in regard to shipping the potatoes as to be continually giving us some foolish excuse. The potatoes are for seed, and should they get here too late to be planted, you will have to stand the consequence."

On February 21, defendants wrote apprising plaintiff that the potatoes had been shipped, and inclosed the invoices, and added: "We made sight draft on you for $ 344.17 with bill of lading attached. You will kindly accept our draft, and should there be any difference (but how there could be any, we cannot understand), it can be made right easily." On February 22, defendants wrote to plaintiff: "Your very impressive note of the 19th received today, and we can hardly blame you for being dissatisfied on account of not receiving your potatoes. The delay could not be assigned to any neglect of ours; therefore do not think we wrote you foolish excuses, but did the very best we could. In the first place, we expected refrigerators, and after waiting were disappointed. We then ordered box cars, and were loading the potatoes when the weather turned cold, and had to discontinue. We then lined the cars, and it turned so cold that it delayed us for a few days again; and, lastly, we got cars all lined, put stoves in and waited a few days for fine weather, which moderately came, and we forwarded you two cars, which we wired you last night and billed yesterday evening."

On February 25, plaintiff wrote to defendants:

"Replying to your favor of the 21st, inclosing invoices of two cars of potatoes, will say that we would be pleased if you would make us out corrected invoices for the two cars of potatoes, making price 30 cents, F. O. B. as per our contract with you. We bought the potatoes at 30 cents, F. O. B., and not at 53 cents delivered. We ordered the First National Bank here to return your draft. You can draw for the correct amount through the Exchange National Bank of this city, and your draft will be honored promptly. Sorry that this trouble has occurred, but it is not our fault in the least."

On February 28, defendants wired plaintiff as follows: "Exchange Bank will have bills of lading tomorrow. Get them." On March 3, the cashier of Exchange Bank wired defendants as follows: "Bunch refuses to pay until potatoes are unloaded. Shall I deliver bill of lading?" On same day defendants wired their agent, Walker, to take charge of the potatoes and sell them. On March 4, this suit was brought, and the two carloads of potatoes attached.

Plaintiff testified that the shipment of the potatoes was delayed until it became too late to use or sell them for the purpose wanted; that he could not fill the same order in the market in Little Rock, where he was engaged in business, and to which place the potatoes were to be shipped; that he had made contracts with different parties in Little Rock, on the faith of the arrival of the potatoes on time to be sold for seed; that he lost from 25 cents to 50 cents per barrel on the potatoes, in consequence of their non-delivery within the time, and that they would aggregate six hundred barrels; that the defendants kept putting off the shipment of the potatoes unnecessarily; that other houses shipped potatoes from the same neighborhood at that season in heated cars and otherwise; that he would have honored defendant's draft, as indicated in his letter of February 25, 1890, if he had not, after writing that letter, heard that the weights or quantity of their shipments were short, and when, upon the arrival of the potatoes, they were consigned in such a way that he could have no recourse upon defendants unless he sued them at St. Paul, he declined to receive them upon condition of paying said draft, notwithstanding the letter of February 25, 1890, and he attached them for his claim herein, which is a loss of 29 cents per barrel on 600 bushels of potatoes.

On cross-examination he said that there was nothing in the contract authorizing him to unload the potatoes before paying for them.

H. K. Cochran testified that he sold the potatoes, which were attached, under the orders of the court, and that they were short two hundred and sixty bushels from what was charged by Potts Bros., but that he did not himself weigh or measure the potatoes.

W. H. Potts, one of the defendants, testified that the potatoes were shipped as soon as the weather would permit, and cars could be obtained for that purpose at St. Paul; that there was due defendants the sum of $ 360 for the two car-loads of potatoes, that is, the sum of thirty cents per bushel for twelve hundred bushels.

The cause was tried by the court sitting as a jury, and the following findings of fact were made, viz:

"1. That certain potatoes were ordered by Bunch from Potts Bros., and that they were not shipped promptly. The court finds that said Potts Bros. were entitled to a reasonable time to ship the potatoes, having due regard to the weather and the chance of getting suitable cars for safely shipping the potatoes.

"2. The court further finds that the delay in the shipment was waived by Bunch in not refusing the potatoes, and in having the terms of payment changed after the potatoes were shipped.

"3. That, at the time the attachment was levied, the potatoes were the property of Bunch, and the defendants were not entitled to any damages on the attachment.

"4. The court finds that the defendants sold and delivered to the plaintiff 1200 bushels of potatoes at thirty cents a bushel, and are entitled to recover of the plaintiff the sum of three hundred and sixty dollars and cost."

Thereupon the court adjudged "that the plaintiff take nothing by his complaint herein, and that his attachment be discharged at his costs; that the defendants have and recover from the plaintiff the sum of $ 360 for their debt and damages on their counterclaim, together with their costs."

Plaintiff has prosecuted this appeal, and insists that the trial court erred in its findings, and that the judgment was excessive.

Cause remanded.

Morris M. Cohn for appellant.

Time was of the essence of this contract. Benjamin, Sales Corbin's ed. vol. 2, p. 892, note. Where the contract specifies no time, a reasonable time is allowed for delivery depending on the circumstances of the case. Benjamin, Sales, vol. 2, sec. 1023, and note 11; 3 M. & W. 445. If the delivery is of a less quantity than that sold, it may be refused by the purchaser. Benjamin, Sales, vol. 2, sec. 1032, and note 18; also sec. 535. And the buyer may recover damages for such failure. Id. sec. 1032, note 18. Bunch had the right to inspect the potatoes before receiving them. Benjamin, Sales, sec. 1042, and note 25. And had a right to receive them for this purpose. Id. sec. 1051. And reject them afterwards. Ibid. The mere difficulty of shipping the potatoes, on account of weather, if an existing factor (which is not proved here), would not excuse. 25 Conn. 530; 2 Wall. 1, 7. The measure of damages, the article of potatoes in the quantity named not being procurable at Little Rock, was certainly the profit he had lost, if not also the loss his customers sustained; although Bunch does not claim the latter. Sutherland, Damages (Ed. 1882), vol. 1, 75, 81, 91; Benjamin, Sales, secs. 1336, 1337, 1338; 47 Ark. 519, 527; 48 Ark. 502. In any event Bunch...