Johnson v. Hughes

• Decision Date: 27 May 1907
• Citation: 103 S.W. 184,83 Ark. 105
• Parties: JOHNSON v. HUGHES
• Court: Arkansas Supreme Court

103 S.W. 184

83 Ark. 105

JOHNSON v. HUGHES

Supreme Court of Arkansas

May 27, 1907

Appeal from Craighaed Circuit Court; Allen Hughes, Judge; affirmed.

STATEMENT BY THE COURT.

The plaintiffs, W. J. Hughes & Co., sold and delivered to the defendants, Johnson, Berger & Co., an oil tank for the price of $ 40.09 pursuant to a written contract which, after particularly describing the tank with reference to its size and capacity and after the terms of the sale, contained the following:

"GUARANTY:

"We guaranty the tank and pump referred to in this contract with ordinary use to remain in perfect order for three years from the date of invoice. Should said tank or pump get get out of order at any time, we agree to repair same free of charge except transportation, which is to be paid by the purchaser. This contract covers all agreements between the parties hereto, and no agent is authorized to change the contract in any way. I or we have read and understood the above contract."

This is an action to recover the contract price of the tank, and the defendant pleaded in defense an alleged warranty on the part of the plaintiffs that the use of the tank by defendants in their store would not interfere with their fire insurance. The court excluded testimony offered by defendants tending to establish a verbal agreement made by plaintiffs at the time of the sale warranting the tank in the particular named.

After the delivery of the tank a dispute arose between the parties concerning the question whether its use would interfere with the local insurance rules, and the plaintiffs wrote a letter to defendants proposing that the latter return the tank, and that they (plaintiffs) would replace it with a new one. A witness for the defendants testified that on receipt of said letter defendants shipped the tank to another concern, the American Tank & Fixture Co., of St. Louis, which had formerly held the contract by assignment from the plaintiffs.

The court instructed the jury that the issues were narrowed down to the single one, whether or not the defendants had shipped the tank back to the plaintiffs; that if "they shipped it back to the people who shipped it to them then that would be enough to release them from the contract; but if they shipped it back to a person who did not ship it to them, and with whom they had no contractual relations, that would not release them from liability, and they would be liable on the contract."

The court refused to give a peremptory instruction in behalf of the defendants, and also refused to give the following instruction at their request:

"No. 1. If you find from the evidence that Johnson Berger & Co. shipped the tank in question to W. J. Hughes & Co., or anyone else, upon receipt of the letter of W. J Hughes & Co., dated November 25, 1902, in an attempt to comply with the instructions contained in said letter plaintiffs can not recover in this action because it is a different action from that sued on in the justice of the peace court.

"No. 3. If you find that Johnson, Berger & Co. shipped the machine in controversy to some other person in St Louis or elsewhere, other than the person to whom they should have shipped it under the letter from W. J. Hughes & Co. to them dated November 25, 1902, and further find that W. J. Hughes & Co. knew who had the machine in charge and could have procured the same at any time and refused to receive it, not on the ground that it was shipped to the wrong consignee in St. Louis or elsewhere, but on some other ground or for some other reason, then the error in returning the machine, if there was any, was waived by the said W. J. Hughes & Co., and it can not recover.

"No. 4. Even if you find from the evidence that the machine was never delivered to W. J. Hughes & Co. by Johnson, Berger & Co. in compliance with the terms of their letter of November 25, 1902, rescinding the contract of sale, if you find that the machine was by Johnson, Berger & Co. shipped to a concern in St. Louis, and that W. J. Hughes & Co. knew where it was and could have secured it at any time, then it was the duty of W. J. Hughes & Co. to mitigate their damages by procuring the machine from the person who received it in St. Louis, and W. J. Hughes & Co. can recover from Johnson, Berger & Co. only for the necessary expense of procuring the machine from the person in whose charge it was placed."

The jury returned a verdict in favor of plaintiffs for the price of the tank, and the defendants appealed.

Affirmed.

Charles D. Frierson, for appellants.

1. Appellee's agreement that the pump and tank should not interfere with appellee's insurance being a contemporaneous, collateral, substantive agreement relating to the same subject-matter and forming a part of the consideration of the written contract, the court erred in excluding proof thereof. 27 Ark. 510; 55 Ark. 347; id. 112; 2 Jones on...