Duffie v. Pratt

• Decision Date: 17 June 1905
• Citation: 88 S.W. 842,76 Ark. 74
• Parties: DUFFIE v. PRATT
• Court: Arkansas Supreme Court

88 S.W. 842

76 Ark. 74

DUFFIE v. PRATT

Supreme Court of Arkansas

June 17, 1905

Appeal from Garland Circuit Court CHARLES D. GREAVES, Special Judge.

Affirmed.

Wood & Henderson, for appellants.

The contract was not a severable one. 7 Am. & Eng. Enc. Law, 95; 75 Ill. 205; 41 N.E. 465; 43 N.W. 864; 44 P. 544; 84 Am. Dec 728.

Leslie & Huff, for appellees.

The contract sued on was a severable one, consisting of several distinct items, and founded on a consideration apportioned to each. Beach, Contracts, § 731; 40 Cal. 251; 66 Pa.St 351. Appellants failed in their defense as to the quality of the goods. Mech. Sales, §§ 1320, 1328; 7 Allen, 29; 30 Oh. St. 671; 1 Wall. 359.

OPINION

BATTLE, J.

This action was instituted by Walter Pratt & Co. against S. M Duffie & Co. upon the following written contract:

"Walter Pratt & Co. hereby guaranty that the purchaser's gross profit from the sale of the perfumery and toilet preparations bought under this order and hereafter purchased of said firm will not be less than 33 1-3 per cent. of the amount of this order each year for a period of three years from date of invoice, and the said Walter Pratt & Co. further agree and hold themselves bound at the end of each year, if the gross profits do not amount to 33 1-3 per cent. of the amount of this order for that year, to pay to the purchaser a sufficient sum of money by New York or Chicago draft to make up the deficiency, if there be any, or to buy back at the purchase price at the expiration of this agreement all goods remaining on hand at that time. The foregoing is conditional on the purchaser keeping the goods tastefully displayed in his store in the show case furnished by us for that purpose, purchasing from us at least semi-annually sufficient goods to keep this department complete and up to the amount of this order, making settlement for all goods purchased of us as provided in order, sending us by registered mail at the end of each year a complete and accurate list of all goods sold, with a correct inventory of all goods on hand at that time, allowing no article to go for a less profit than is usually made on this class of goods, and using reasonable diligence in promoting the sale of these goods. Goods shipped to purchaser and not on hand or returned will be considered sold. Bond to be filed with Security Bank covering all agreements in the order.

"Exchange--Any goods contained in this order may be returned to us for exchange at any time. To protect us from unreasonable demands for exchange, we require that goods so returned must be accompanied by a new order for goods of an equal value. We pay freight to factory on goods returned for exchange.

"Warranty--All goods are warranted to be same in quality, material and in all other respects as samples shown by salesman. The purchaser agrees to examine and inspect the goods at once upon their arrival at destination, and if said goods fail to comply with said warranty he shall within five days from date of arrival at destination give detailed written notice of such failure by registered letter to Walter Pratt & Co., Chicago, Ill.; otherwise, all warranty of said goods is waived. Goods cannot be returned for credit on account, except as herein provided.

"We deliver all goods to purchaser by delivering them to the transportation company herein specified, purchaser to pay all transportation charges.

"The following is the list of goods contained in this order:

Per

Doz.

Am't.

R't'l.

4 Doz.

Handkerchief Extracts, assorted, on easel

$ .75

$ 3.00

$ .10

2 Doz.

Handkerchief Extracts, assorted, No. 745

2.00

4.00

.25

3 Doz.

Handkerchief Extracts, assorted, No. 755

4.00

12.00

.50

4 Doz.

Sachet Powders

.75

3.00

.10

2 Doz.

Persian Violet Perfume

.40

.80

.05

1 Doz.

Princess Toilet Water, No. 237

4.00

4.00

.50

1/2 Doz.

Princess Toilet Water, No. 247

4.00

2.00

.75

1 Doz.

Farina Cologne

4.00

4.00

.50

2 Doz.

Velvet Talcum Powder

.75

1.50

.10

1 Doz.

Roger's Hair Grower

6.00

6.00

.75

1 Doz.

Benzo Hazel Cream

2.00 2.00

.25

2 Doz.

Mentholated Cream

4.00

8.00

.50

1 Doz.

Invisible Toilet Powder (white)

2.00

2.00

.25

1 Doz.

Invisible Toilet Powder (flesh)

2.00

2.00

.25

1 Doz.

Pratt's Velvette

6.00

6.00

.75

1 Doz.

Pratt's Dentifrice

2.00 2.00

.25

1 Doz.

Pratt's Tooth Powder

1.65

1.65

.25

3 Doz.

Rosalana

4.25

12.75

.50

1 Doz.

Princess Tissue Developer

6.25

6.25

.75

2 Doz.

Pratt's Toilet Soap

.75

1.50

.10

2 Doz.

Quinine Hair Tonic

6.00

12.00

.75

1 Doz.

Foot Relief

2.00

2.00

.25

1 Doz.

Invisible Complexion Powder (white)

4.00

4.00

.50

1 Doz.

Invisible Complexion Powder (flesh)

4.00

4.00

.50

1 Doz.

Invisible Complexion Powder (Brunette)

4.00

4.00

.50

1 Doz.

Cherry Lip Pomade

2.00 2.00

.25

2 Doz.

Pratt's Shampoo Powder

2.00

4.00

.25

1/2 Doz.

Bulk Sachet Powder, violet

3.00

1.50

1/2 Doz.

Bulk Sachet Powder, rose

3.00

1.50

1/2 Doz.

Bulk Sachet Powder, heliotrope

3.00

1.50

1/2 Doz.

Crushed Sachet Powder, carnation

3.00

1.50

1/2 Doz.

Crushed Violet Handk'f Extract, No. 923

4.00

2.00

.50

1/2 Doz.

Crushed Violet Handk'f Extract, No. 946

6.00

3.00

.75

1/2 Doz.

Persian Rose Handk'f Extract, No. 933

4.00

2.00

.50

1/2 Doz.

Persian Rose Handk'f Extract, No. 956

6.00

3.00

.75

1 Doz.

Pearl Toilet Powder

.75

.75

.10

1 Bottle

Pink Bulk Perfume, White Rose

4.00

4.00

1 Bottle

Pink Bulk Perfume, White Lilac

4.00

4.00

1 Bottle

Pink Bulk Perfume, Frangipanni

4.00

4.00

1 Bottle

Pink Bulk Perfume, Snow Lily

4.00

4.00

1 Bottle

Pink Bulk Perfume, Jockey Club

4.00

4.00

1 Bottle

Pink Bulk Perfume, Heliotrope

4.00

4.00

1 Bottle

Pink Bulk Perfume, Blue Gentian

4.00

4.00

1 Bottle

Pink Bulk Perfume, Jasmine

4.00

4.00

1 Bottle

Pink Bulk Perfume, Red Carnation

4.00

4.00

1 Bottle

Pink Bulk Perfume, Crab Apple Blossom

4.00

4.00

1 Bottle

Pink Bulk Perfume, Swiss Violet

4.00

4.00

1 Bottle

Pink Bulk Perfume, Wild Thorn Blossom

4.00

4.00

1 Bottle

Pink Bulk Perfume, Crushed Violets

6.00

6.00

1 Bottle

Pink Bulk Perfume, Persian Rose

6.00

6.00

Total amount of this order

$ 194.20

1 Atomizer.

1500 Circulars advertising this line of goods.

1500 Circulars describing the pictures going with the Perpetual Advertising System.

Name and address of purchaser printed on above circulars.

3 Bottles of Perfumery, retail price 50c each, to pay for distributing circulars.

1 Graduate.

6 Portfolio, No. 5607, containing 10 sample pictures belonging to the Advertising System.

100 Booklets, "Suggestions."

8 Sterling Silver Thimbles, assorted sizes.

97 Envelopes containing advertising and drafts good for one Sterling Silver Thimble each, mailed by Walter Pratt & Co. to a list of

97 names furnished by the purchaser.

1 Walter Pratt & Co. Regulation Oak Show Case, wood doors and wood shelves. Size 21 in. wide, 48 in. long, 40 in. high.

"Terms--Five per cent. fifteen days from date of invoice, or two, four and six and eight months net, divided into four equal payments, each for one-fourth of the amount of this order. When long terms of credit are taken, account must be closed by notes without interest, due in two, four, six and eight months from date of invoice. Accounts not closed as provided above will be subject to sight draft without further notice. Separate verbal or written agreements with salesmen are not binding upon Walter Pratt & Co. All conditions of sale must be shown on this order.

"Positively no goods on commission or open account. This order not subject to countermand.

"Hot Springs, Ark. Feb. 27, 1902.

"Walter Pratt & Co., Chicago, Ill.--Gentlemen: Please ship us, care of Burlington, Cedar Rapids & Northern Ry., the assortment of goods listed above, like samples shown us by your salesman, at the prices specified and in accordance with all the terms above specified, which we have carefully read and find to be complete and satisfactory. We have no agreement or understanding with salesman except as printed or written on this order. Receipt of duplicate of this order from your salesman is hereby acknowledged.

"Name of purchaser, S. M. Duffie & Co.

"WALTER PRATT & CO.

"By M. Sankey, Salesman."

In making the foregoing contract, plaintiffs were represented by a traveling salesman, who sold the goods referred to in the contract to the defendants by samples exhibited to them at the time the order was made. The goods were shipped, and were received by the defendants on the 9th of March, 1902. On the 17th of the same month they notified the plaintiffs of the receipt. Defendants tested the White Lilac perfume, which was sold to them at the price of $ 4, and, on a day subsequent to the 17th of March, 1902, refused to accept the goods, because the lilac perfume did not correspond to the sample by which it was sold to them. They did not test any of the remainder of the goods by the samples by which the same were sold.

According to the terms of the contract, the defendants waived the warranty and accepted the goods, and thereby became bound to pay for them, having failed to give notice of the failure of the goods to comply with the warranty within five days after they (defendants) received them. Pratt v. Meyer, 75 Ark. 206, 87 S.W. 123.

But the defendants asked the court to instruct the jury as follows: "4. The contract between plaintiffs and defendants is an entire contract; and defendants were not required to accept any of said goods, if any material part of the goods shipped under said contract were different and inferior in quality from the goods ordered."

The court refused to instruct the jury as asked, but instructed them as follows:

"The contract shows that several articles of goods were included in one and the same order,...