Colossus Co. v. D. L. Fair Lumber Co.

Decision Date12 October 1931
Docket Number29455
CourtMississippi Supreme Court
PartiesCOLOSSUS CO. v. D. L. FAIR LUMBER CO. et al

Division B

1 SALES. Buyer's taking of goods shipped on written order and retaining part without agreement for return of balance constitutes acceptance of entire shipment.

Where goods were shipped upon a written order, and the consignee takes the goods and retains part of them, and returns the other without agreement that he may do so, this constitutes an acceptance of the whole shipment.

2 SALES. Consignee, to make return of part of goods available as part payment, must show shipper's agreement to receive such goods; in action to recover price of goods shipped evidence held not to establish shipper's agreement to accept return of part.

In order for a consignee of goods to avail of a return of part of the goods in part payment of the account, he must show an agreement express or implied that the shipper had consented to so receive them. The evidence examined, and held insufficient to show such agreement.

3. SALES. Check in payment of part of goods retained held not payment in full, but pro tanto only where check did not purport to be otherwise.

A check sent in payment of goods retained from shipment where part of them are returned, not showing that it was sent in full payment of the account, does not constitute payment of such account in full, but is applied only pro tanto upon the account.

HON. JNO. F. ALLEN. Judge.

APPEAL from circuit court of Winston county, HON. JNO. F. ALLEN, Judge.

Action by the Colossus Company against the D. L. Fair Lumber Company and others. From the judgment rendered, the plaintiff appeals. Reversed, and judgment rendered for the plaintiff.

See, also, 156 Miss. 878, 127 So. 300.

Reversed, and judgment here for appellant.

R. W. Boydstun, of Louisville, for appellant.

If for any reason defendants wished to rescind the contract they should have returned all the goods.

Hytkins Bros. v. Inter-national Dress Co., 124 So. 653; Hytkins Bros. v. Hannover Children's Wear Co., 124 So. 654; Kanson Hat Co. v. Blakeney & Son, 108 So. 139.

E. M. Livingston, of Louisville, for appellees.

The appellant ratified the rescission of the contract by accepting the merchandise returned and by accepting the check in payment of the balance due and in cashing the check and using the proceeds thereof and cannot now be heard to complain or to say that it did not accept the return of the merchandise as a rescission of the contract.

Where a person gave an order to a traveling salesman for a firm selling wares, which order provided, not subject to countermand and responsible for delivery ends with the carrier's receipt, and where the goods are shipped on such order and the party retains part of them, but undertakes to return part, he is bound by the acceptance and if afterwards he returns part of the goods without instructions or reasons for refusing them, and they are placed in warehouse by the shipper, who gives no notice of such storing, it becomes a question for the jury to determine whether the seller accepting the returned goods as payment pro tanto, but is not one for a peremptory instruction by the court.

Colossus Company v. D. L. Fair Lumber Co., 127 So. 300.

OPINION

Ethridge, P. J.

The appellant is a corporation domiciled at Shreveport Louisiana, and the appellees compose a copartnership doing business at Louisville, Mississippi. On January 19, 1928, a salesman of the appellant took an order from the appellees for certain sawmill supplies and a certain shotgun. When the order was sent in, it was accepted by the president of the appellant company, and the goods were shipped to Louisville, Mississippi, where they were opened, and the gun was retained, and the other goods repacked and reshipped to the seller. Upon the arrival of the goods at Shreveport, the appellant took them and stored them, and instructed its salesman to go to Louisville and see if he could adjust the matter. The appellant's president testified that experience showed this was a more successful way of dealing with certain matters. The salesman called upon the appellees, but failed to adjust the matter, and so reported to the appellant. Thereupon the appellant wrote the appellees a letter seeking to induce them to accept the shipment, stating in the letter that certain parts of the order were made up special, and stating that they desired to treat the appellees just as they would expect to be treated were their positions reversed. The president of the appellant company stated further in this letter: "The merchandise...

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