John Meeter & Sons v. Paragould Wholesale Grocer Co.

• Decision Date: 02 April 1923
• Docket Number: 264
• Citation: 249 S.W. 982,158 Ark. 128
• Parties: JOHN MEETER & SONS v. PARAGOULD WHOLESALE GROCER COMPANY
• Court: Arkansas Supreme Court

249 S.W. 982

158 Ark. 128

JOHN MEETER & SONS v. PARAGOULD WHOLESALE GROCER COMPANY

No. 264

Supreme Court of Arkansas

April 2, 1923

Appeal from Greene Circuit Court; W. W. Bandy, Judge; affirmed.

Judgment affirmed.

Fuhr & Futrell, for appellant.

The sale was complete when the onion sets were loaded on cars at Lansing, "Terms, net cash f. o. b. Lansing, Ill. The seller shall not be held liable for damage to sets in transit." Evidence shows appellant performed its part of the contract, and was not able to find a market for the sets after appellee refused to accept them. The court overlooked the provisions of the contract and treated the bill of lading to shipper's order as conclusive of the question of delivery. 137 Ark. 397, holding title to shipment passed at point of shipment, controlling here. 111 Ark. 521; 56 N. J Law 617; 32 Md. 344; 138 Ark. 350. Other cases: 68 Ark. 310; 81 Ark. 389; 90 Ark. 131; 106 Ark. 482; 102 Ark. 344; 91 Ark 240; 54 Ark. 305. The construction and effect of contract ruled by decision in 126 Ark. 19. Appellee's rights were not affected by the bill of lading, which neither accelerated nor delayed delivery. Shipping shipper's order was only a method of collection that did not affect rights of parties. Appellee relies on 101 S.W. 477 and 13 S.E. 13, but they do not sustain its contention. Authorities cited in Erwin case do not support contention. New York cases are not in point and Mass. and U. S. cases support our contention, as does Benjamin on Sales, § 581. The bill of lading is only conclusive of the passing of the title, in the absence of anything in the contract contrary thereto, but not so when the contract fixes the time and place of delivery. It is not denied in the answer that the sets were in good condition when delivered f. o. b. at Lansing, as the contract provides. The proof also shows it, and that they were in good condition at Fort Worth, Texas, after four days stay at Paragould, where appellee refused to accept shipment. Appellant performed its contract, and is entitled to judgment.

Block & Kirsch, for appellee.

The onion sets were not shipped according to the contract made, but were consigned shipper's order, bill of lading with draft attached, and the sale was not completed upon delivery to the carrier. 241 S.W. 887; 111 Ark. 521; 128 Ark. 124; 101 S.W. (24) 447; 13 S. E. (Ga.) 513. The court was right in declining to submit the case to the jury on any other theory than that plaintiff's right to recover would depend on the condition of the sets at destination. The measure of damages could not have been greater than the difference between the contract price and the market price at the time of the breach of the contract, if there was a breach of it. 89 American Decisions 713. Appellant refusing to permit the court to submit the case to the jury on this theory, the verdict was properly directed.

OPINION

MCCULLOCH, C. J.

Appellant (a corporation) is engaged in the business, at or near Lansing, Illinois, of producing for sale and selling onion sets and other vegetable seeds, and it entered into a contract in writing with appellee, a dealer in merchandise at Paragould, Arkansas, for the sale of eight hundred bushels of onion sets of different varieties. The contract was signed by both parties, and specified the price, and also specified the terms of payment in the following language: "Net cash, f. o. b. Lansing, Illinois." The contract also stated the date when the shipment was to be made. There was no other reference in the contract to the mode of shipment.

Appellant loaded the onion sets in a car at Lansing, Illinois, and consigned the same under bill of lading to its own order, and attached the same to a draft on appellee for the price, and forwarded the draft to a bank at Paragould for collection.

Appellee's agent was permitted to inspect the onion sets in the car when the same reached Paragould, and rejected them on the ground that they were wet, spoiled, and unfit for planting.

Mr. Meeter, one of the officers of appellant corporation, came to Paragould upon receipt of notice from appellee of rejection of the shipment, and a controversy arose between the parties as to whether or not the seed were in good condition. Appellee refused to recede from its position rejecting the seed, whereupon appellant reshipped the seed to another place in an effort to find a market.

This is a suit instituted against appellee to recover the price, alleging that the seeds were sold and delivered under written contract. The case was tried before a jury, and each party introduced testimony concerning the condition of the seed at the time the car arrived at Paragould.

It is undisputed that appellee refused to accept the seed on the ground that they were unfit for use. The testimony adduced by appellee tended to show that the seed were spoiled and unfit for...