Capitol Food Co. v. Mode & Clayton

• Decision Date: 23 March 1914
• Citation: 165 S.W. 637,112 Ark. 165
• Parties: THE CAPITOL FOOD COMPANY v. MODE & CLAYTON
• Court: Arkansas Supreme Court

165 S.W. 637

112 Ark. 165

THE CAPITOL FOOD COMPANY v. MODE & CLAYTON

Supreme Court of Arkansas

March 23, 1914

Appeal from Faulkner Circuit Court; Eugene Lankford, Judge reversed.

Judgment reversed and cause remanded.

P. H Prince, for appellant.

1. The contract was in writing, plain in its terms, and oral evidence was not admissible to add to or vary it. 102 Ark 326; Ib. 515.

2. Delivery to the carrier for shipment is delivery to the consignee. 24 A. & E. Enc. L. (2 ed.), 1071; 83 Ark. 426; 98 Id. 495; 76 Id. 371.

3. The right to rescind must be done promptly. If the contract is entire the vendee must rescind the contract as a whole, and put the vendor in statu quo. 24 A. & E. Enc. L. (2 ed.), 1105-1111; 38 Ark. 351; 4 Id. 467; 5 Id. 395; 38 Id. 334.

Locklar & O'Daniel and C. E. Condray, for appellees.

1. The terms and conditions agreed upon subsequently became part of the contract and binding them made known to appellant, and they notified appellees to accept the goods subject to such terms. 9 Cyc. 597-8, note 92; 5 B. & Ad. 58-65; 11 Ark. 189; Ib. 389; 28 Id. 64.

2. Any subsequent agreement, oral or written, is competent to show an alteration, modification or discharge of a previous agreement in writing. 58 Ark. 381; 65 Id. 371; 87 Id. 101; 9 Cyc. 597-8, note 92; 98 Ark. 219.

3. Appellees had the right to retain the profits for the goods actually sold. 64 Ark. 228; 49 Wis. 151.

OPINION

MCCULLOCH, C. J.

Plaintiff, The Capitol Food Company, was engaged in the business of manufacturing and selling stock remedies at Tiffin, Ohio, and through its traveling salesman sold a bill of goods, upon written order, to defendants Mode & Clayton, merchants at Conway, Arkansas, and this is an action instituted to recover the sum of $ 866.68 alleged to be due as balance on the account.

The goods were duly shipped to defendants as per the written order and accepted by the latter after some further correspondence between the parties; but the defendants allege in their answer that the goods were sold on condition that plaintiff's traveling salesman, one Vann, "agreed to return after the holidays, work the trade and secure orders for acceptance by defendants, and to come back and work the trade as often as defendants needed him, or send a man to do this work at any time defendant requested until all of said goods were sold," and that said Vann "did not return after the holidays to work the trade as agreed, nor did plaintiff send any other salesman," and that "plaintiff did not send E. H. Vann, or any other salesman, to work the trade and secure orders as agreed, and in this respect failed entirely to comply with its part of the agreement, though defendants were ready and anxious at all times to comply with their part of the agreement in every particular." They further allege that they sold part of the goods and paid the amount, less commissions, to plaintiff and shipped the remainder of the goods back; but that plaintiff refused to accept same.

The trial of the case before a jury resulted in a verdict in favor of defendants, and the plaintiff has prosecuted an appeal.

According to the evidence adduced, plaintiff's agent, Vann, visited defendants at their place of business in Conway and secured an order for goods aggregating in price the sum of $ 1,000. The contract was signed by defendants and by Vann, the salesman, and purported to cover the entire contract between the parties. It stipulated that there should be an "amount of free goods shipped to pay freight, $ 270;" that verbal or special agreements in any way affecting the payment of the bill should not be allowed; that the order should not be subject to countermand, and "that any special agreement to be valid must appear on the front of the original order." The order was dated December 16, 1910, and the goods were shipped out by plaintiff on December 27, 1910, reaching Conway in due course of transportation. Defendants claimed that Vann had verbally agreed that the "free goods" to be sent under the order should amount to sufficient to make a profit of 25 per cent., and also that he would come back after the holidays and help defendants "work" the trade. Before the goods reached Conway, they discovered that the amount of free goods specified in the order was not sufficient to cover the freight and 25 per cent profit, and they addressed a letter to plaintiff calling the latter's attention to said verbal agreement and asking the question whether plaintiff was 'willing to make good the extra amount of free goods' and the other conditions specified above." Plaintiff replied to this letter under date of January 5, which letter was not satisfactory to defendants, and on January 14, 1911, which was after the goods had reached Conway, but before they had been taken from the possession of the carrier by defendants, the latter addressed the following letter to plaintiff:

"Gentlemen: Your favor of the 5th inst. is rather indefinite, and we want a specific promise that you will allow us enough free goods and discount to make us 25 per cent profit on the line if we are to accept the goods, and also that you will send a man here as often as we want one to help us work the trade. Better wire us on receipt of this, as there is liable to be charges accumulating on the shipment, and as Mr. Vann has not kept his promise as to when he would be back here and as to how much free goods he had figured out in the order that he had prepared for us to sign, we will not accept the shipment unless you promise definitely that you will make the goods show us a profit of not less than 25 per cent after filling the orders he gave us with the free goods he gave the customers and paying the freight.

"Yours truly."

That letter was received by plaintiff on January 16, and on the same day the plaintiff replied by telegraph, as follows:

"Mode & Clayton: Will ship additional free goods to make up 25 per cent profit. Accept shipment. Writing Vann to call upon you. Kindly mail us copy of contract. (Signed) The Capitol Food Company."

That telegram was followed by a letter written on the same day as follows:

"Your valued favor of the 14th inst., came duly to hand and contents carefully noted. We will say that we are wiring you this morning advising you, that we are perfectly willing to ship you goods, as you desire to make up your profits of 25 per cent. We are going to kindly ask that you accept the shipment, so as to be able to take care of the orders, which Mr. Vann turned in to you. Now, gentlemen, we are going to kindly ask that you mail us a duplicate of the contract which you had with Mr. Vann, and...