Hickman Ebbert Co. v. Asa W. Allen Co.

• Court: Mississippi Supreme Court
• Writing for the Court: SMITH, C. J.
• Citation: Hickman Ebbert Co. v. Asa W. Allen Co., 111 Miss. 161, 71 So. 310 (Miss. 1916)
• Decision Date: 27 March 1916
• Parties: HICKMAN EBBERT COMPANY v. ASA W. ALLEN COMPANY

71 So. 310

111 Miss. 161

HICKMAN EBBERT COMPANY v. ASA W. ALLEN COMPANY

Supreme Court of Mississippi

March 27, 1916

March 1916

APPEAL from the Circuit court of Lee county, HON. CLAUDE CLAYTON Judge.

Suit by Hickman Ebbert Company against the Asa W. Allen Company. From a judgment for defendant, plaintiff appeals.

Appellant filed suit on open account against appellee. The record shows that on September 20, 1911, a traveling representative of appellant called on appellee and took an order for a carload of wagons, the price being agreed upon. The order which appellee signed contained the following clause:

"For which I agree to give you settlement within thirty days from date of invoice, either by notes on your blanks due months from date of invoice payable at Bank of , or by cash less 10 per cent. December 1st."

The account was not paid on December 1st, but payments were made at various times between January 8, 1912, and October 3 1912, and appellant charged appellee with interest at six per cent. and credited him with the partial payment he made.

Appellee contends that he has paid the invoice price of the goods plus six per cent. interest, but that appellant failed to give him credit for the proper discount of ten per cent. which its traveling representative said would be allowed. Appellant stands on the contract as written, claiming that the ten per cent. discount was only to be allowed if the account was paid in full by December 1st.

The case was submitted to a jury, and a verdict returned for the defendant. On the trial the court gave the following instruction to the jury at the request of the defendant:

"The court charges the jury for the defendant, Asa W. Allen Company, that if they believe from a preponderance of the evidence that...