Central Kansas Milling Co. v. Patterson

• Decision Date: 10 December 1923
• Docket Number: 31
• Citation: 256 S.W. 847,161 Ark. 480
• Parties: CENTRAL KANSAS MILLING COMPANY v. PATTERSON
• Court: Arkansas Supreme Court

256 S.W. 847

161 Ark. 480

CENTRAL KANSAS MILLING COMPANY v. PATTERSON

No. 31

Supreme Court of Arkansas

December 10, 1923

Appeal from Benton Circuit Court; W. A. Dickson, Judge; reversed.

Judgment reversed and cause remanded.

Appellant per se.

Under the statute, C. & M. Digest, § 1227, it was sufficient to allege performance conditions of the contract in general terms. It was not necessary to state the facts showing the performance. 92 Ark. 111; 130 Ark. 496; Am. & Eng. Ann Cases, 1913-E 75. It was not necessary to allege which option in the contract attached to the complaint the plaintiff elected to rely upon. The matters pertaining to the options are not grounds for demurrer, but should be pleaded by answer. Am. & Eng. Ann. Cases, 607, note 611; 131 Ark. 525. For tests as to sufficiency of a pleading on demurrer, see 110 Ark. 130; 96 Ark. 163; 125 Ark. 464; 122 Ark. 141; 138 Ark. 38; 93 Ark. 371; 102 Ark. 287.

Duty & Duty, for appellees.

Having elected to sue for the difference between the contract price and the market value of the flour, the complaint was defective in failing to allege the market value at Rogers Arkansas, the place of delivery. 55 Ark. 376; 56 Ark. 401; 70 Ark. 79; 92 Ark. 111; 79 Ark. 603; 131 F. 43.

OPINION

MCCULLOCH, C. J.

Appellant instituted this action against appellees in the circuit court of Benton County to recover damages alleged to have been sustained by reason of the breach of two separate contracts for the sale of flour.

Appellant is a foreign corporation, engaged at Lyons, Kansas, in the business of manufacturing and selling flour, and appellees were copartners under the firm name of Rogers Milling Company, engaged in business at Rogers, Arkansas.

It is alleged in the complaint that the parties entered into two separate contracts for the sale by appellant to appellee of flour, the first contract being for 500 barrels, and the second for 1,000 barrels, to be delivered at a certain price f. o. b. Lyons, Kansas, with the freight to Rogers to be deducted.

It is further alleged in the complaint that, after certain quantities of the flour were delivered, appellees broke the contract by refusing to accept further deliveries. Damages are laid in the sum of $ 4,892, and the complaint also contains a statement of the market price of the flour at Lyons, Kansas, less freight charges to Rogers, on the respective dates of the alleged breaches of the contracts.

The court sustained a demurrer to the amended complaint, and appellant declined to plead further. Final judgment was rendered dismissing the complaint.

The first ground on which counsel for appellees defend the ruling of the court in sustaining the demurrer is that the complaint contains no statement as to the market value of the flour at Rogers on the respective dates of the alleged breaches of the contracts, so as to show the difference between the contract price and the market price at the place of delivery. The contracts provided that the prices were fixed upon delivery on board cars at Lyons, Kansas, with deduction for freight to Rogers, but the shipment was to be to the shipper's own order, with draft attached to the bill of lading, and it may be an issue of fact in the trial according to the evidence adduced, whether a delivery was intended to be consummated at Lyons, Kansas, or at Rogers, Arkansas. Richardson v. Fowler Commission Co., 154 Ark. 92, 241 S.W. 887. Therefore the difference between the contract price and...