Emerson v. Stevens Grocer Co.

• Decision Date: 25 November 1912
• Parties: EMERSON v. STEVENS GROCER COMPANY
• Court: Arkansas Supreme Court

151 S.W. 1003

105 Ark. 575

EMERSON v. STEVENS GROCER COMPANY

Supreme Court of Arkansas

November 25, 1912

Appeal from Jackson Circuit Court; R. E. Jeffery, Judge; affirmed.

Judgment affirmed.

Jno. W. & Jos. M. Stayton, for appellants.

Jones & Campbell, for appellee.

OPINION

HART, J.

This is the second appeal in this case. The first appeal is reported in 95 Ark. 421, under the style of Emerson v. Stevens Grocer Company. The issues and facts are fully stated in that decision, and, as counsel for appellants concede that the facts on the retrial of the case are the same, they need not be restated here. Appellee brought this suit against appellants to recover damages for failure to deliver a car of potatoes which the former alleges the latter had sold it. There was a verdict and judgment for the appellee, and the case is here on appeal.

It is first contended by counsel for appellants that the court erred in refusing to give instruction numbered 6 asked by them. The instruction is as follows:

"The burden of proof is upon the plaintiff to show by a preponderance of the evidence that the defendant accepted plaintiff's counter proposition."

There was no error in this. Instruction numbered 1 given by the court is in part as follows: "The first contract between the parties has been abandoned by the plaintiff, and the only thing left in the case, and the only question for you to decide, is whether or not the defendants accepted the said counter proposition and agreed to deliver the potatoes at Marianna at the same prices it had quoted for their delivery at Newport; and, before you can find for the plaintiff, you must find from a preponderance of the evidence in this case that the defendants did accept the offer thus made by plaintiff, and did agree to deliver said potatoes at Marianna at the same prices that it had previously quoted for a delivery of them at Newport."

It will be observed that the concluding part of this instruction is practically the same as instruction numbered 6 requested by appellants and refused by the court.

The court instructed the jury as follows:

"3. You are instructed that the request of the plaintiff contained in its letter of January 6 was a counter proposition to buy a car of potatoes for delivery at Marianna at the same price as quoted by the defendants for delivery of a car of potatoes at Newport, and that you must find that this counter proposition was accepted by the defendant before you can find for the plaintiff in this case, and that the receiving and depositing of said check for $100 contained in said letter of January 6 was not an acceptance of said counter proposition in itself, but merely evidence of such acceptance, and that it is the intent with which such check was received and deposited that is to guide you in determining the weight to be given such acts as showing an acceptance. Now, if you find that the defendants received and deposited said check upon the terms and with the intention of assenting to the terms of said counter offer, or retained said check an unreasonable time without notice, then you will find for the plaintiff but, if you find that it was received and deposited and merely held by the defendants for a reasonable time pending negotiations between plaintiff and defendants for the purchase of the Marianna car, such holding would not be an acceptance of the counter offer, and you will find for the defendants."

"4. If you find that, upon the plaintiff ordering a car of potatoes on Newport quotations delivered at Marianna, defendants notified plaintiff that delivery at Marianna would require a deposit of $100 for future delivery, and that plaintiff remitted the amount, but asked a modification to the Newport rate, and if you further find that the defendants accepted the check upon the terms and in assent to the offer set out in plaintiff's letter of January 6, or that, under the circumstances of this case, the defendants retained such check for an unreasonable time, then you may find for the plaintiff the amount sued for."

It is now insisted by counsel for appellants that the court erred...