Fort Smith Appliance & Service Co. v. Smith

• Decision Date: 19 February 1951
• Docket Number: No. 4-9386,4-9386
• Citation: Fort Smith Appliance & Service Co. v. Smith, 236 S.W.2d 583, 218 Ark. 411 (Ark. 1951)
• Parties: FORT SMITH APPLIANCE & SERVICE CO. v. SMITH.
• Court: Arkansas Supreme Court

Page 583

236 S.W.2d 583

218 Ark. 411

FORT SMITH APPLIANCE & SERVICE CO. v. SMITH.

No. 4-9386.

Supreme Court of Arkansas.

Feb. 19, 1951.

Martin L. Green and Lawrence S. Morgan, Fort Smith, for appellant.

Bland, Kincannon & Bethell, Fort Smith, for appellee.

ROBINSON, Justice.

This case grows out of an agreement which the appellant, plaintiff in the Circuit Court, claims is a conditional sales contract, and appellee contends is a consignment. The jury found for appellee.

Appellant urges as errors the giving by the court of Instruction No. 4 requested by appellee and the refusal to give Instruction No. 12 requested by appellant. The contract involved is as follows:

'Consignment Agreement

'This Agreement made and entered into this the 25th day of September, 1947, by and between Fort Smith Appliance and Service Company, hereinafter referred to as the consignor, and Jim Smith, doing business as the Smith Sales Company, hereinafter referred to as the consignee,

Witnesseth:

The consignor hereby consigns to Jim Smith, doing business as the Smith Sales Company, the following described personal property, to-wit:

(Here is listed property)

'It Is Agreed And Understood by the parties hereto that the said Jim Smith shall pay to the said Fort Smith Appliance and Service Company the sum of Nineteen Hundred Dollars ($1900.00) for all of the above described furniture on or before September 25, 1948, and It Is Further Agreed That in the event the said Jim Smith shall sell any part of the above described property for cash, he shall at that time pay to the said Fort Smith Appliance and Service Company the amount set opposite said item in the foregoing list. In The Event the said Jim Smith shall sell any part of the above described property on credit, then and in that event the said Jim Smith shall pay for said property when he has received payment for the same on or before September 25, 1948, whichever date shall first occur.

'It Is Further Agreed that on or before September 25, 1948, the said Jim Smith shall purchase and pay for all of said furniture, paying the total price of Nineteen Hundred Dollars ($1900.00) as herein provided; that after September 25, 1948, if the said Jim Smith shall have failed to pay the whole of said sum, then and in that event the said Jim Smith agrees to pay interest at the rate of six per cent (6%) per annum on the unpaid balance. Title on the above described shall be retained by the said Fort Smith Appliance & Service Company until payment has been made for all or part of said furniture, as herein provided, and in the event said sum of Nineteen Hundred Dollars ($1900.00) has not been paid on or before September 25, 1949 then and in that event the Fort Smith Appliance and Service Company shall have the right to declare the whole amount due and treat this agreement as a completed sale, or, at its option may retake possession of said property as its own, without demand, notice or process of law.'

Instruction No. 4:

'Under the law a buyer is deemed to have accepted the goods when he indicates to the seller he has accepted them, or, when the goods have been delivered to him and he does some act inconsistent with the seller's ownership of the goods without indicating to the seller that he has rejected them. So in this case, you shall find that Jim Smith did not accept the goods unless he indicated to Fort...