Dollins Sign & Advertising Co. v. Smith, 4-3049.

• Decision Date: 19 June 1933
• Docket Number: No. 4-3049.,4-3049.
• Parties: DOLLINS SIGN & ADVERTISING CO. v. SMITH.
• Court: Arkansas Supreme Court

Page 978

62 S.W.2d 978

DOLLINS SIGN & ADVERTISING CO. v. SMITH.

No. 4-3049.

Supreme Court of Arkansas.

June 19, 1933.

Rehearing Denied September 25, 1933.

Appeal from Circuit Court, Lawrence County, Eastern District; S. M. Bone, Judge.

Action by the Dollins Sign & Advertising Company against H. E. Smith, and cross-complaint by defendant. Judgment for defendant, and plaintiff appeals.

Affirmed.

Beloate & Beloate, of Walnut Ridge, for appellant.

G. M. Gibson, of Walnut Ridge, for appellee.

MEHAFFY, Justice.

On June 11, 1931, the appellee purchased from the salesman of appellant an electric sign, paying at the time he signed the order $105 in cash, and executing and delivering to the salesman his promissory note for $316.50. The agent had two blanks for contracts, one of them on white paper, and the other on yellow paper. They were printed forms, and alike. The following clause was in each printed contract: "The erection of said sign shall be made by the purchaser at his own expense." This sentence was stricken out in the copy given to the purchaser, but was left in the original, which was signed. The purchaser thought it was stricken out of both contracts.

The sign was made and shipped to and received by the appellee some time prior to July 20, 1931. On June 18, 1931, the company wrote a letter to the purchaser thanking him for the order, and assuring the purchaser that it was the desire of the company to furnish a sign that would reflect credit on both, the purchaser as a user and the company as a manufacturer.

On July 18, 1931, the company wrote the purchaser a letter inclosing copy of bill of lading stating that it was shipped that day, and attaching the invoice. After the appellee received the sign, he wrote the company the following letter, to which the company did not reply:

                             "Walnut Ridge, Ark., 7/20/31
                "Dollins Sign & Adv. Co., 315 W. 2nd., L. R
                    Ark
                

"Gentlemen: The Neon sign for which I signed a contract with your firm, has been delivered and in view of the fact that your interest in the same is considerably large, I think you should send an experienced man to hang it, or at least supervise the work involved in doing so, & I will furnish 2 or 3 good workmen to assist him.

"I have not uncrated it yet so don't know if you have the necessary cables in the crate, & if you have not included them please send them at once to avoid any further delay. I will await the arrival of your man before unpacking the sign. Please advise.

                      "Yours truly,         H. E. Smith."
                

After the appellee had written the letter of July 20th, stating that he would await the arrival of the company's man before unpacking the sign, the salesman who took the order came to Walnut Ridge and decided it would be easier to install the sign on top of the house than across the street. The salesman called the appellant at Little Rock, told them there was nothing to hang the sign with; that there was no cable, no gas pipe, nor anything to hang it with either across the street or on the building. After telephoning to the company, the salesman said that the company knew that these things belonged to the sign, and that they would send the proper outfit to hang it with.

The salesman left, and said he would return the next day and hang the sign, but he never returned. He said he would send cable, and it arrived a few days later. Appellee never did get any service from the company.

J. V. Lenon, manager of the appellant company, testified about receiving the contract signed by Smith, the appellee, and receiving the note, and said that the contract was accepted by letter, and was shipped on July 10th. He testified that the sign was properly made and shipped, and delivered to the purchaser f. o. b. Little Rock, and that the company had nothing further to do with it; that their obligations were through. He stated that he handed a letter to the purchaser, in which it was stated that, while he was at Walnut Ridge, he would assist and advise the workmen in the installation of the sign, but would not assume any responsibility; that the contract did not specify that the company was to furnish the cable and lamps, but that he had with him, or would furnish with no charge, sufficient cable, turnbuckles, lamps, and lay bolts to be used in the installation in order to complete same; that the contract called for the sign f. o. b. Little Rock without accessories; that the company was in no way obligated to assist in this installation and the furnishing of accessories, and his offer of assistance was purely a gesture to be of service to the purchaser, and made subject to the purchaser's acceptance of this letter.

The evidence on the part of the appellant tended to show that the sign was properly constructed, and constructed out of the material that they made signs of this character out of.

The appellee's testimony tended to show that the sign was to be made of copper, and that it was made of very cheap tin; that it was never of any service to him, and was wholly unfit for use.

The...