Collier Commission Co. v. Wright
| Decision Date | 07 July 1924 |
| Docket Number | (No. 103.) |
| Citation | 264 S.W. 942 |
| Parties | COLLIER COMMISSION CO. v. WRIGHT. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Sebastian County; John E. Tatum, Judge.
Action by Lawrence Wright against the Collier Commission Company. Judgment for plaintiff, and defendant appeals. Modified, and affirmed in part and remanded in part.
Hill & Fitzhugh, of Ft. Smith, for appellant.
Warner, Hardin & Warner, of Ft. Smith, for appellee.
Appellee instituted this action against appellant to recover on alleged contracts for the sale of peaches — to recover the unpaid price of six carloads of peaches delivered under contract of sale, and to recover lost profits on several other carloads contracted to be sold and delivered, but which appellant is alleged to have refused to accept. There was a recovery below for the full amount prayed for in the complaint.
The principal controversy relates to the nature of the contract between the parties, appellee claiming that the contract was for sale of the peaches directly by appellee to appellant, whereas the claim of appellant is that the contract was that appellant should handle the peaches for appellee merely as broker and not as purchaser. There was a sharp conflict in the testimony on that issue, and, as it was properly submitted to the jury, we must treat the verdict as conclusive.
The transactions between the parties now under consideration occurred in July, 1922. Appellee was cashier of the Bank of Lavaca, in Sebastian county, and was also interested in farming. Appellant at that time was engaged at Ft. Smith in the grain and produce business. The parties entered into an oral contract for the shipment of four carloads of peaches at a stated price, and those cars were inspected, shipped, and delivered in accordance with the directions of appellant, and were fully paid for. There is no controversy in the case concerning the payment of the price of those cars. The only controversy is as to the character of the contract between the parties. The sale and shipment of those cars was only brought into the controversy by appellee for the purpose of showing what the contract was. After the delivery of those cars, there was another oral agreement for the shipment of more cars, and these were shipped and paid for. Two more cars which were shipped have not been paid for, and the price of those two cars, one $600 and the other $589, making a total of $1,189, is involved in this suit. The cars were not shipped to appellant, but were shipped to dealers in Kansas City and other places — most of them to Baldwin-Pope Marketing Company, Kansas City.
The claim of appellant is, as before stated, that it acted as broker, and that these cars were shipped to Baldwin-Pope Marketing Company as purchasers. The claim of appellee is that the sales were to appellant, and were shipped to the consignee under appellant's direction.
Appellant contends, as a further defense to these two items, that there was a defect in the quality of previous shipments to the Baldwin-Pope Marketing Company, and that the price of these two cars was credited on the account of Baldwin-Pope Marketing Company against appellee for such shortage. This is but another way of contending that appellant was not the purchaser, but merely handled the shipments as a broker, and is not responsible as purchaser.
The finding of the jury on the issue as to the nature of the contract between the parties is necessarily conclusive as to the liability of appellant for these two items.
There was still another contract for the sale and shipment of fifteen carloads, and this action includes the balance on the price of four carloads shipped and received under the contract. The net price of three of the cars amounted, according to the contention of appellee, to the aggregate sum of $1,431.25, and, after crediting the sum of $517.88 paid to appellee, it leaves a balance of $913.37. The price of the fourth car amounted, according to the contention of appellee, to the sum of $543.75, and, after crediting the sum of $122.91 paid by appellant to appellee after the commencement of this suit, it leaves a balance of $420.84. The contention of appellant is that the amount paid on the three cars was accepted by appellee under such circumstances as constituted an accord and satisfaction. The facts with reference to the payment on those three cars were that appellant delivered to appellee an itemized statement as to each one of the cars, showing the number of bushels of peaches, gross price, and the price per bushel, the freight, cost of icing, and commissions on each car, and showing the net balance of the price, after deducting the freight, expenses, and commission. These statements were delivered to appellee with a check covering the aggregate of the three net amounts shown by the statements, and appellee received the check and statements without comment, and cashed the check. The present action was commenced a few days thereafter. The payment of the last car was made in the same way, except that it was made after the commencement of this suit. Counsel for appellant contend that the facts stated constituted beyond dispute an accord and satisfaction, and that the court should have given a peremptory instruction, at least as to the price of the three carloads embraced in the payment made prior to the commencement of the suit. We cannot agree with counsel in this contention, for neither the statements nor check delivered by appellant to appellee showed on their faces any statement that the payment was tendered in full, nor was any condition imposed on the face of the check or statements. Therefore it was a question of inference for the jury to determine whether, under the circumstances, the tender of payment was made on condition that it be accepted in full. Longstreth v. Halter, 122 Ark. 212, 183 S. W. 177; O'Leary v. Keith, 134 Ark. 36, 203 S. W. 38; Arkansas Z. & S. Corp. v. Silver Hollow Min. Co., 148 Ark. 512, 230 S. W. 573; Beeson-Moore Stave Co. v. Brewer & Story, 158 Ark. 512, 250 S. W. 518.
It is also contended that the court erred in its charge to the jury on this issue. Appellant requested the court to give instruction No. 9, which reads as follows:
"If you find from the evidence that the defendant, Collier Commission Company, rendered statements to the plaintiff, Lawrence Wright, of each of three cars of peaches sold by them, which statements purported to give the amount received for the peaches, less the commissions, freight, and icing charges, and showed a balance in favor of the said plaintiff, and each of said statements were accompanied by a check showing the identity of the cars for which the statements were rendered, and the said statements and the check were accepted by the plaintiff, Lawrence Wright, the check cashed by him, then you are instructed he cannot recover on account of said three cars for which said statements were thus rendered and check given and accepted by him."
The court refused to give the instruction as asked, and modified it by adding the following:
"Unless you find from the evidence that the checks were only accepted by plaintiff Wright as part payment, and in that event you should find for plaintiff, Wright, such sum as the evidence shows is due him, if any."
Appellant objected to the modification, and saved exceptions.
The instruction as requested by appellant was erroneous, and the court properly refused to give it, for the reason that it stated in peremptory terms that the delivery and acceptance of the statements and check constituted an accord and satisfaction. This is not correct, for the reason already stated that neither the statements nor the check contained any condition that the payment was to be accepted in full, and the issues should have been submitted to the jury whether the payment under the circumstances constituted an accord and satisfaction. O'Leary v. Keith, supra. The court could properly have refused the instruction and have given nothing in its place, for it was the duty of appellant to ask a correct instruction. But this the court did not do. On the contrary, the court modified the instruction by adding the qualification, "unless you find from the evidence that the checks were only accepted by plaintiff Wright as part payment." Appellant objected to this modification, and excepted to the action of the court in giving it. While, as we have said, appellant should have asked a correct instruction, his failure to do so did not deprive him of the right to object to an incorrect instruction on the subject covered by the instruction which he asked. The court might very well have refused to give an instruction on this question, for the reason that a correct instruction was not asked, but, having attempted to charge the jury on this question by modifying the instruction asked, a correct instruction should have been given.
The instruction as given was not a correct declaration of law, for it made the intention of Wright in accepting the check conclusive of its effect. Under the instruction the jury would naturally or very probably have concluded that it was immaterial that appellant tendered the check in full payment of the items which it purported to cover if Wright did not in fact accept...
To continue reading
Request your trial