Butterfield Sales Co. v. Armstrong

• Decision Date: 20 September 1954
• Docket Number: No. 6413,6413
• Citation: 278 S.W.2d 194
• Parties: BUTTERFIELD SALES COMPANY, Appellant, v. E. H. ARMSTRONG, d/b/a Armstrong Supply Company, Appellee.
• Court: Texas Court of Appeals

Page 194

278 S.W.2d 194

BUTTERFIELD SALES COMPANY, Appellant, v. E. H. ARMSTRONG, d/b/a Armstrong Supply Company, Appellee.

No. 6413.

Court of Civil Appeals of Texas, Amarillo.

Sept. 20, 1954.

Rehearing Denied Oct. 25, 1954.

Odell & Brann, Lubbock, for appellant.

Bradley, Key, Carr & Carr, Lubbock, for appellee.

PITTS, Chief Justice.

This is an appeal from a suit seeking to recover the alleged balance due on a debt. The suit was filed originally by Mrs. C. A. Butterfield, as manager of Butterfield Sales Company of Los Angeles, California, against appellee E. H. Armstrong, d/b/a Armstrong Supply Company of Lubbock, Texas. Subsequently, Mrs. Butterfield married R. J. Cooper and by order of the trial court her name was changed in the proceedings to Mrs. C. A. Cooper, joined by her said husband, claiming she was manager of Butterfield Sales Company, hereinafter referred to as appellant.

The record reveals that on August 26, 1950, John A. Brown, as agent and representative of appellant, Butterfield Sales Company, and acting for the said company, entered into a written contract at Lubbock, Texas, with appellee, appointing him Texas distributor, for the said company, of a certain sanitary food protector manufactured by the said company in Los Angeles, California, at a stipulated purchase price and a stipulated selling price therein stated, with a further provision therein contained to the effect that one-half of the total purchase price must accompany each order and the balance must be paid within a 60 day period thereafter. On the same day, appellee ordered 700 sanitary food protectors, under the terms of the contract, at a total cost of $5,180 and enclosed with the order his personal check for the sum of $2,590, which goods were shipped to him under a guarantee and his personal check was duly cashed by appellant.

The only other specific provisions of the contract material to this action are those found in Paragraphs IV and VI thereof, which are completely restated as follows:

'IV.

'Butterfield Sales Company further agrees to have a qualified sales representative to work in the field at least once a year.'

'V.

(Omitted).

'VI.

'The Distributor shall have the right to return saleable Sanitary Food Protectors for credit, less double freight and packaging within 60 days from date of purchase.'

Before appellee would enter into the written contract with appellant's agent, John A. Brown, he obtained an oral agreement with Brown to the effect that he (Brown) would return to Lubbock within 30 to 45 days from the date the contract was executed, and bring with him C. S. Butterfield, then the husband of the alleged manager of the said company, and the two of them would spend at least two weeks in the Lubbock territory, finding and training salesmen to sell and dispose of the sanitary food protectors sold to appellee, as provided for under the provisions of Paragraph IV of the written contract. Brown likewise agreed to give demonstrations in some of the local chain stores in Lubbock, about how to use and sell the sanitary food protectors in order to induce the sale and use of the same in the Lubbock area and he, in fact, gave some such demonstrations in some of the local chain stores during the week or more he was in Lubbock in August of 1950, at the time the contract was executed, using for such demonstrations some of the sanitary food protectors he had with him on that occasion.

The goods were accordingly shipped to appellee, with the understanding previously herein stated, but Brown, Butterfield, or no other representative of appellant ever returned to Lubbock to find and train salesmen or to demonstrate further the use of the product. Neither did appellee hear from Brown or C. S. Butterfield thereafter. Principally for this reason, appellee, through his office manager, on October 3, 1950, wrote and mailed a letter to Butterfield Sales Company at the California address given him by John A. Brown and as shown also on the copy of his contract, advising, in effect, that he did not want the shipment of goods and was therefore revoking the terms of the contract within a 60 day period, as he was authorized to do under the provisions of Paragraph VI thereof, and asked also for shipping instructions in returning the goods in such a way as to recover what was due him as a credit for part payment already advanced by him for the goods, as provided for in the contract. Having received no reply to the said letter, appellee had another letter written, of date November 7, 1950, to Butterfield Sales Company, and mailed to the same address, concerning the former letter and the contents thereof, but received no reply to this letter. The record reflects other correspondence thereafter between the parties and oral testimony revealing appellant's address to be that to which appellee's employees had addressed the letters previously mentioned. The record further reveals that soon after appellee was named appellant's distributing agent in Texas and the goods were shipped, during the months of October, November, and December, 1950, domestic difficulties arose between Mrs. C. A. Butterfield and her husband, C. S. Butterfield, causing controversies which disturbed the operation of appellant's business during the said months, which controversies resulted in a divorce decree between them being entered in a California court in December, 1950, which decree awarded Mrs. Butterfield a divorce and the property belonging to the Butterfield Sales Company. Immediately thereafter, the Butterfield Sales Company went out of business and quit manufacturing the sanitary food protectors late in 1950, or January, 1951. Mrs. Butterfield thereafter married R. J. Cooper in August, 1952.

The record likewise reveals that appellee got no response to his said letters seeking to return the goods, and he did not hear from Butterfield Sales Company or any of its agents until sometime in January, 1951, after the assets of the said company had been awarded to Mrs. C. A. Butterfield, who then refused to accept the return of the goods and settle therefor, but sought by this suit to collect the balance of the alleged account in the sum of $2,590. Appellee denied liability of her claims and sought judgment against appellant in the sum of $4,590 as a counter-claim.

Under these material facts, the case was tried to a jury which found that the goods in question were ordered by appellee from appellant on August 26, 1950, the same date the contract was executed; that the said goods were shipped and duly received by appellee; that within a 60 day period appellee, in writing, on October 3, 1950, requested Butterfield Sales Company to accept a return of the goods in accordance with the terms of the written contract shown in Paragraph VI therof, and that the said company and its representatives received the said requested but that appellant herein prevented the return of the goods in question within a 60 day period stipulated in the contract and that such prevention by appellant constituted a waiver on the part of the appellant on the 60 day time limit stipulated in the contract; that, although an offer was made by appellee in accordance with the terms of the written contract to return the goods in question, Butterfield Sales Company and the authorized agents thereof refused to accept a return of the goods, and that such a...