Cage v. Black
| Decision Date | 13 February 1911 |
| Parties | CAGE v. BLACK |
| Court | Arkansas Supreme Court |
Appeal from Monroe Circuit Court; Eugene Lankford, Judge; reversed.
Judgment reversed and cause dismissed.
Manning & Emerson, for appellants.
When appellees paid the draft and accepted the rice from the railroad company under the bill of lading which specified the amount which should be paid, this was an acceptance of the rice upon the terms then offered by appellants, and this formed the contract between the parties. 9 Cyc. 260; Id. 245.
C. F Greenlee, for appellees.
Appellants' offer was sacks of rice at $ 5.75 per sack, and appellees' acceptance was of sacks of rice at that price. There is no ambiguity in the telegrams and letters on this point. The court's finding of facts from the evidence submitted to it is conclusive. 68 Ark. 83; 70 Ark. 512.
In the state of case presented appellants can not claim that the minds of the parties did not meet, and that, therefore, there was no contract. 9 Cyc. 252. It being the duty of appellees to lessen the damages sustained, if any, by taking the rice and, it being necessary, in order to do so, to pay the draft this payment, being under protest, did not constitute a waiver by appellees of the right to recoup. 9 Cyc. 462; 54 L. R. A. 718, note; 46 Kan. 192; 81 Ga. 104; 55 N.Y. 664; 108 N.Y. 542.
To hold that the payment of the draft under protest and under the circumstances of this case meant that a new contract for the purchase of the rice was made would be equivalent to holding that any shipper could vary the terms of his contract as to price by simply raising the price of the article sold without the consent of the purchaser.
Manning & Emerson, for appellants in reply.
The most favorable view in favor of appellees that can be taken of this case is that they understood that they were buying the rice at so much per sack; but appellants understood that they were selling at so much per barrel. There was no meeting of the minds of the parties until the appellees accepted the rice knowing the price demanded by appellants. 11 L. R. A. 254; 111 N.W.1097.
This was an action instituted by J. T. Black and others as partners, the plaintiffs below, to recover an amount which they had paid to defendants, under protest, in excess of the sum that was due for the purchase money of a shipment of rice which it was alleged they had purchased from them. The plaintiffs resided at Brinkley, Arkansas, and the defendants were dealers in rice, residing at Houston, Texas. The plaintiffs, learning that defendants were engaged in the business of selling rice, sent to them a telegram on March 5, 1909, in which they asked them to "name price of carload Honduras rice." On the same day the defendants replied by wire from Houston, as follows: On March 6, 1909, the plaintiffs, learning that a sack of rice contained four bushels, and that it required 170 sacks containing four bushels each for their purposes, sent the following telegram to defendants: On the same day plaintiffs wrote a letter to defendants in which they stated they had received defendants' telegram, and had answered by wire for them to ship 170 sacks and to wait for letter. In this letter they also stated that they preferred that shipment be made about the 15th of March; and also stated:
On the same day, March 6, defendants wrote to plaintiffs as follows: "In accordance with telegrams exchanged between us, we confirm sale to you 170 sacks Honduras seed rice, highly graded, at $ 5.75 per barrel." And on March 8 defendants wrote to plaintiffs as follows: On receipt of the above letter from defendants stating they confirmed sale to plaintiffs of 170 sacks of rice at $ 5.75 per barrel, the plaintiffs at once wrote to defendants stating in substance that they were not familiar with the rice business and did not know what a barrel meant, and presumed that barrels and sacks meant the same. To this letter the plaintiffs testified they received no reply. On March 17, 1909, the defendants delivered the rice to a common carrier at Houston consigned to Forrest City, and the bill of lading therefor was attached to a draft on plaintiffs for $ 1,214.44 and sent to the bank at Brinkley, Arkansas, with instructions to turn same over to plaintiff on payment of draft. Accompanying the draft the defendants sent an invoice or bill as follows:
On March 19 the plaintiffs wrote to defendants as follows:
On March 22, 1909, the defendants sent telegram to plaintiffs as follows: "Rice sold by barrel, 162 pounds each; sacks do not run uniform; rate Forrest City 29 1/2," and on the same day wrote to them that their quotations were based at all times on a certain price per barrel. Some further correspondence passed between the parties in which the plaintiffs claimed that they had bought the rice at $ 5.75 per sack and the defendants insisted that they had sold the same at $ 5.75 per barrel of 162 pounds. On April 9, 1909, the plaintiffs went to the bank at Brinkley, and paid off the draft in full, and took up the bill of lading, and received the possession of the rice thereunder. On the same day they instituted this suit against the defendants for $ 164, same being for the difference between the price of the rice at which they claimed to have bought and the amount they were required to pay on the draft in order to get possession of the rice, and also for an alleged overcharge on freight.
The defendants introduced testimony tending to prove that, according to the custom of the trade in buying and selling rice in Texas and Houston, rice of the kind sold to plaintiffs was invariably sold by the barrel of 162 pounds each, and that it is the custom in quoting the price on such rice by wire to state the amount of the price, without stating the unit of measurement upon which the price is based; but we do not think that it was proved that this custom was in existence a sufficient length of time to have become generally known; at least, there was not sufficient testimony on this point to override a finding of the trial court to the contrary. Upon the trial of the case the plaintiff, Black, who carried on all the above negotiations with defendants, was asked if he did not know, before he paid the draft with the bill of lading attached, that the defendants were expecting the plaintiffs to pay $ 5.75 per barrel for the rice; and to this he answered that he "certainly did."
The case was tried by the lower court sitting as a jury,...
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