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

• Decision Date: 31 March 1930
• Docket Number: 28412
• Court: Mississippi Supreme Court
• Parties: COLOSSUS CO. v. D. L. FAIR LUMBER CO

127 So. 300

156 Miss. 878

COLOSSUS CO. v. D. L. FAIR LUMBER CO

No. 28412

Supreme Court of Mississippi, Division B

March 31, 1930

1 SALES. Acceptance. Part of goods. Payment pro tanto. Question for jury. Buyer by retaining part of goods and returning part held bound by acceptance under contract denying right to countermand; whether seller accepted goods returned by buyer as payment pro tanto held question for jury.

Where a person gave an order to a traveling salesman for a firm selling wares, which order provided "Not subject to countermand. Our responsibility 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 warehouses by the shipper, who gives no notice of such storing or that he will hold the buyer, it becomes a question for the jury to determine whether seller accepted the returned goods as payment pro tanto, but it is not one for a peremptory instruction by the court.

2 PAYMENT. Check. Proof. Giving check for goods accepted held not to establish payment, absent proof check was ever paid. Where a party ordering goods accepts part of the shipment and testifies that he sent a check for the goods accepted but does not show that the check was ever paid, such proof is insufficient to show payment of the check, and it is error to give a peremptory instruction on the theory that the check was paid.

HON. JOHN F. ALLEN, Judge.

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

Action by the Colossus Company against the D. L. Fair Lumber Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded for new trial.

Judgment reversed and cause remanded.

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

Appellant contends that the signed contract in the case governs the rights and liabilities of the parties and that the contract is not subject to countermand.

Hytken Bros. v. International Dress Company, 124 So. 653; Hytken Bros. v. Hanover Children's Wear Co., Inc., 124 So. 654; S. P. Nelson & Sons v. Wilkins & Parkes, 151 Miss. 492, 118 So. 436; Kansen Hat Company v. Balkeney & Son, 142 Miss. 851, 108 So. 139; Burgeon & Company v. Williams, Smithwick & Co., 121 So. 817; Tropical Paint & Oil Company v. Mangum & Hatcher, 125 So. 248.

Appellees had no right to take out and use a part of the goods and return the balance.

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

To constitute a sale the price must be definitely fixed or the agreement must contain such elements express or implied that the price can be ascertained therefrom. The price is one of the essential elements involved in the agreement, and there must be an agreement of the parties to the price, either express or implied, before there can be a completion of a sale or a binding executory contract therefor.

23 R. C. L. 1277.

Appellee recognizes the well-settled rule of this court announced in the case of Hytken Bros. v. International Dress Company, 124 So. 653; Hytken Bros. v. Hanover Children's Wear Company, 124 So. 654, and numerous other cases on this point.

There is a distinction between the facts in the Hytken Bros. cases and the case at bar.

Acting upon the belief that appellant had accepted the return of goods appellee mailed to appellant a check for forty-two dollars and four cents presumably when the account was due. Appellant kept this check and no notice whatever was given to appellee that they declined to accept it as a settlement in full of the account until this suit was filed.

OPINION

Ethridge, P. J.

The D. L. Fair Lumber Company placed an order with the Colossus Company for certain supplies for a sawmill company, and also a shotgun. The order reads as follows:

Rush

147

Rate

Salesman C. R. Webb No. 22

No. Date 1/7/28

Ship to D. L. Fair Lo. Co.

Date

Street

Town. Louisville

State of Mississippi

Term 1 per cent 10 days; 30 days net.

Not subject to countermand. Our responsibility for delivery ends with carrier's receipt.

No. Items

Dept. Stuff

Sq. or bev.

Size, name

Size Rod No.

Dia. Stuf Box

Box Length

Reg. W. P.

and No. U.

Ply

Width Belt

of Belt

Rub

Machine R.

Price

P. M.

1 Set 3 3/8

*3*4 4/8 8 P. R. Shot Gun

$ 42.04

4. Sizes

*3*S. T. Lace 40: Croped 60 1/2 Ft. 90

54.45

9 1/2. x

15 x 11/2 Manhole Gaskets 23 7/16,

57.84

12.

*3*38 9/16 150

9 1/2. x

15 x 1 3/8 Manhole Gaskets 15 1/8

12. N. Yds.

1/16 Super rubber Sheet packing 21 3/4

13.05

3. Yds

1/16 Rubber sheet packing 37

35.15

5. Yds

*3*Rubber sheet packing

2. Cans

packing paste

50

1.00

1.

$ 203.53

[Signed]

D. L. FAIR LO. CO.

1. Kit No Charge To D. L. Fair

Rush

The Colossus Company Inc and Gulf States Belting & Hose Co Shreveport La.

The declaration was filed upon this order, and an affidavit was made that the account embraced in the order is just and correct within the knowledge of the affiant, and that the items thereon stated were sold and delivered to the D. L Fair Lumber Company at their special instance and request, that credit has been duly given for all payments and just and lawful offsets to which said account is entitled as thereon state, and that the balance thereof amounting to the sum of two hundred three dollars and fifty-three cents, with interest from February 23, 1928, is justly due and remains unpaid.

The defendants pleaded the general issue, and gave notice under the general issue that on the hearing they would offer evidence to prove, and would prove, in bar of plaintiff's right to recover, that on the 19th day of January, 1928, the plaintiff shipped to the defendant certain merchandise described in the itemized statement of account attached to the declaration, and that said merchandise was received by the defendants; that, when the same was received, the defendants examined the merchandise, and found that it was not the merchandise purchased by them, and that it was not such merchandise as could be used by the defendants, and was not the kind, character, and grade of merchandise purchased by the defendants, and was unsuited for their use, and that defendants on the 26th day of January, 1928, returned to the plaintiff the merchandise, with the exception of the shotgun. The amount of the returned merchandise aggregated one hundred sixty-one dollars and forty-nine cents, which left due the plaintiff forty-two dollars and four cents. It was also stated that the defendants mailed a check to plaintiff for forty-two dollars and four cents covering the balance due on said account, and that the plaintiff accepted said merchandise when returned by the defendants, and therefore that the defendants do not owe the plaintiff anything whatsoever.

The deposition of J. R. Russell, President of the plaintiff corporation, was taken, and he testified to the receipt of the order as stated in the account attached, and that the goods were shipped to the defendants; that he passed on the signed order when it came to the office, and has handled all correspondence in connection with the sale, and he is acquainted with the details of the said transaction; that the order was filled just as received in the regular course of business; that the company's regular salesman procured the order, and the goods were shipped in accordance with instructions shown in the order, and that the amount due thereunder is two hundred three dollars and fifty-three cents. He further testified that the goods were not sold subject to approval, but the order specifically provides that it is not subject to cancellation, and that the Colossus Company had never consented for the goods to be returned; that the goods were not received by the company as a rescission of the contract, nor did the company give credit to the D. L. Fair Lumber Company for the same, but that the goods were received subject to the order of the D. L. Fair Lumber Company, and stored, and that the goods were still held in storage subject to the instruction of the D. L. Fair Lumber Company.

D. L Fair of the D. L. Fair Lumber Company, the manager of the said company, testified that he signed the order sued upon, and that the goods were shipped to him; that he examined the supplies and returned part of them; that the part returned amounted to one hundred sixty-one dollars and forty-nine cents; that the goods were not satisfactory, and were not what he ordered; that...