Hutchins v. Smith-Harrison & Co.
| Decision Date | 13 April 1914 |
| Docket Number | 16491 |
| Citation | 106 Miss. 852,64 So. 789 |
| Parties | W. H. HUTCHINS v. SMITH-HARRISON & CO |
| Court | Mississippi Supreme Court |
APPEAL from the circuit court of Sunflower county, HON. J. L WILLIAMS, Special Judge.
Suit by Smith-Harrison & Company against W. H. Hutchins. From a judgment for plaintiff, defendant appeals.
The facts are fully stated in the opinion of the court.
Reversed and remanded.
Frank E. Everett, for appellant.
According to the undisputed testimony of appellant he agreed to buy of appellee certain goods of a specified kind, quantity and quality and to be made up in a certain designated way. Then if appellee did not ship the exact kind, quantity and quality and made up as directed by appellant at the time of the agreed purchase, there was no fulfilment of the contract on the part of appellee and no right of action accrued to him against the defendant if he refused to accept them. See Benj on Sales, par. 689.
See Strauss v. Furniture Co., 76 Miss. 350; Elliott v. Howison, 40 So. 1026.
Now lets apply this general and universal principal to the case under consideration. In this case we have no written contract or order but only a verbal agreement to sell and to buy. Hutchins agreed with Joiner, the salesman of appellee, to buy certain goods of a particular kind, quantity and quality, to the extent of about fifty dollars. When the invoice and goods were received he immediately notified the appellee, upon receipt of the invoice, that he had shipped him more goods than he agreed to buy. When they were received he notified appellee that the goods were not the kind ordered and that he would keep that portion which came up to the order and which were ordered and return the remainder; that he had such an agreement with the traveling salesman. The appellee did not object to the return of the goods, but to the contrary, tacitly admitted that appellant was correct in his statements and offered him a five per cent discount, to which he was not otherwise entitled to, to retain the entire shipment. See letter to Hutchins. Joiner does not dispute the statement of Hutchins in reference to this transaction at all. Then take in connection with the non-denial of the statements of Hutchins, the fact that there was no order signed by him or offered him for his signature and no duplicate of the order given him, which by the way is the universal custom in selling goods by traveling salesmen, and which would, had it been given, shown the transaction between them, and also the fact that Joiner's principal would not ship a new customer, such as Hutchins, a smaller order than seventy-five or one hundred dollars worth of merchandise, all go to show that Hutchins is correct in his statement as to what he bought.
Hutchins had a legal right to take from this shipment such goods as came up to the order and return the remainder. In this connection I call the attention of the court to the case of Brawley v. United States, reported in the 96 U.S. 168, where a written contract was executed by and between Brawley and a government official for eight hundred and eighty cords of wood, more or less, as the needs may be to be determined by the port commander. This agreement was made between them some days before the contract was signed up. After the agreement was made for the sale of this wood, Brawley cut the eight hundred and eighty cords of wood and took ten ox teams, teamsters and wood haulers from Minnesota to Dakota Territory for the purpose of delivering the same and had actually delivered about fifty cords when the post commander decided he only wanted forty cords of the wood. In a suit against the United States to compel the payment of the contract price for the wood, all of which was delivered within a few feet of the post, the supreme court of the United States held that he was not entitled to recover, but that the officer had a right to take what he needed and refuse the remainder. Then certainly he would be entitled to select goods which we ordered from goods we did not order and retain the ones ordered and return the remainder.
Counsel for appellee seeks to justify the action of the lower court in refusing instructions asked by defendant there and granting a peremptory charge for the plaintiff, under the case of Ormond v. Henderson, 77 Miss. 35. However there is quite a difference in the principal of that case and the case now under consideration. In Ormond v. Henderson, supra, it appears from the record that Hester, a broker in Meridian, agreed to sell Ormond ten barrels of granulated sugar. Hester, from the report of that case, had absolutely no connection with Henderson, not even any credit with him. After agreeing to sell Ormond ten barrels of surgar and having none of his own, he simply wired Henderson to ship Ormond twenty-five barrels of granulated sugar, doubtless thinking and intending, as a broker, to dispose of the other fifteen barrels and make a profit on it himself. Ormond admitted that upon receipt of the invoice from Henderson that he knew Hester had no sugar and that the shipment from Henderson to him was intended as a sale direct from Henderson to him and he accepted it as a sale by Henderson and not by Hester. There was no contract or agreement whatever between himself and Henderson prior to this shipment, by which Henderson was to ship certain goods of a certain quantity, quality and kind, but when he received the invoice, that was the first time he had any knowledge of any proposition by Henderson to sell him this bill of goods and he then bound himself to pay the entire bill, first by his silence in not writing Henderson upon receipt of the invoice and second, by dealing with the goods as his own, without any agreement or understanding with Henderson. But in the case at bar, there was a specific agreement between Hutchins and Smith-Harrison & Co. for certain specified stuff, and immediately upon receipt of the invoice which conveyed the knowledge to Hutchins that they had shipped him goods he had not ordered, he notified them of that fact and told them he would keep such as he had bought. And then when the goods arrived, finding therein goods not ordered and some goods...
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...583; Herzog v. Purdy (Cal.), 51 P. 27; Barlow v. Stone (Mass.), 86. N.E. 306; Williams v. Robb (Mich.), 62 N.W. 352; Hutchins v. Smith Harrison & Co. (Miss.), 64 So. 789. vendor cannot prevent the purchaser from accepting what he had ordered by sending him also other goods that he did not o......
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