Drake v. Pope

• Decision Date: 07 April 1906
• Parties: DRAKE v. POPE.
• Court: Arkansas Supreme Court

95 S.W. 774

DRAKE v. POPE.

Supreme Court of Arkansas.

April 7, 1906.

Appeal from Circuit Court, Howard County; James S. Steel, Judge.

Action by O. T. Pope against A. F. Drake. From a judgment for plaintiff, defendant appeals. Affirmed.

At the request of plaintiff, the court gave the following instruction: "No. 1. If the jury believe from the evidence that the plaintiff ordered the corn in controversy from the defendant, A. F. Drake, at a guarantied price, and of a guarantied quality, and the defendant shipped the corn or caused it to be shipped to the plaintiff, which corn was of an inferior quality to that ordered, and that plaintiff was compelled to pay for said corn before he had an opportunity to inspect it, then plaintiff is entitled to recover the purchase price of the corn that did not come up to the quality ordered, without regard to whether said corn was shipped by the defendant or some other person from whom said defendant procured it to be shipped."

The appellant asked, and the court gave, the following instructions:

"(1) The jury are instructed that the plaintiff cannot recover anything against the defendant, A. F. Drake, for any damages to the corn in controversy, unless the evidence shows that the same was bought from A. F. Drake, and the order therefor filled by him."

"(4) The plaintiff cannot recover anything from the defendant, A. F. Drake, unless he bought the corn and feed stuff in controversy from the said Drake

"(5) The burden of proof is on the plaintiff to show by a preponderance of the testimony that he bought the corn in controversy from the defendant, A. F. Drake."

The defendant requested, and the court refused, the following instructions:

"(2) If the jury find from the evidence that the plaintiff, O. T. Pope, ordered the corn in controversy from A. F. Drake, and that A. F. Drake did not have the corn, etc., ordered, and could not fill the order for this reason, but sent the order to the Cunningham Commission Company, of Little Rock, to be filled by them and shipped to the plaintiff, O. T. Pope, you should find for the defendant, A. F. Drake.

"(3) If the jury find from the evidence that the corn in controversy was shipped by the Cunningham Commission Company, of Little Rock, Ark., to O. T. Pope, the plaintiff, and that plaintiff paid Cunningham Commission Company for the corn and feed stuff in controversy, he cannot recover anything from the defendant, A. F. Drake."

W. C. Rodgers, for appellant. Feazel & Bishop, for appellee.

HILL, C. J.

O. T. Pope ordered of A. F. Drake a car load of feed stuff, containing corn of a certain grade, among other stuff. The car arrived with bill of lading attached to draft in favor of Cunningham Commission Company for the price of the car load. Drake paid the draft and received the car and discovered the corn was not in compliance with the order and returned it. This suit is to recover the price of the corn, and the only question litigated was whether Drake or the Cunningham Commission Company was the responsible party.

The court instructed the jury that, if Pope ordered the corn from Drake at a guarantied price and quality, and Drake shipped or caused to be shipped the corn, which was of an inferior quality to that ordered, and Pope was compelled to pay for the corn before he had an opportunity to inspect it, then he was entitled to recover, without regard to whether said corn was shipped by Drake or some other person from whom said Drake procured it to be shipped. This instruction was correct, and in consonance with the facts as testified to by Pope. It could make no difference whether Drake...