Joppa Mattress Co. v. Arkansas Valley Cotton Oil Co.

• Decision Date: 01 January 1912
• Citation: 142 S.W. 831
• Parties: JOPPA MATTRESS CO. v. ARKANSAS VALLEY COTTON OIL CO.
• Court: Arkansas Supreme Court

142 S.W. 831 JOPPA MATTRESS CO.
v.
ARKANSAS VALLEY COTTON OIL CO. Supreme Court of Arkansas. January 1, 1912.

Page 832

Appeal from Circuit Court, Yell County; Hugh Basham, Judge.

Action by the Joppa Mattress Company against the Arkansas Valley Cotton Oil Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

This was a suit for damages growing out of an alleged breach of a contract for the sale of 50 bales of cotton linters. It was alleged that plaintiff on the 4th day of October, 1909, purchased of the defendant 50 bales of lint cotton, known as "linters," of 500 pounds per bale, at the price of 3 cents per pound; that defendant, in violation of its contract, after demand of plaintiff for delivery, refused, on the 23d day of December, 1909, to deliver said linters; and that at said date of such refusal they were of the market value of 4½ cents per pound. Prayer for judgment for the difference in the sale and market price in the sum of $375.

The defendants answered, denying all the material allegations of the complaint, and pleaded the statute of frauds; and further that the plaintiff delayed an unreasonable time, after it was notified of defendant's readiness to deliver the cotton, to give shipping instructions and receive same, and it, on that account, rescinded the contract, as it had the right to do; and by way of counterclaim asked $25 damages for insurance, and $12 additional for storing same, and $75 for damage to the linters on account of exposure to the weather during such delay.

The evidence shows the sale of 50 bales of linters at three cents per pound by the defendant company, which acknowledged on October 8, 1909, receipt of confirmation of the order therefor. Afterwards the following correspondence was had: The defendant company, on October 16th, wrote to the plaintiff, "We express you to-day samples of the linters sold you October 4, 1909, and would be glad to ship them at once." To which it replied on November 19th, as follows: "Answering your favor of the 16th, beg to say that samples have not been received as yet. We were in hopes that we could have the fifty bales shipped to us by boat, and would thank you to hold these linters for a little while until the river rises sufficiently for a boat to bring the cotton down. Let us know how long you can hold these, and if the river does not rise in time, we will have them sent by rail. Will you have more linters to offer?" Nothing further was said by either party until December 20th, when plaintiff wrote: "We are now ready to have you ship the fifty bales of linters to us, and we want them to come by boat. We are this day writing to A. R. Bragg, manager of the packet company, to bring them down on the next trip of the boat. Get the bill of lading from the boat and draw on us, three days sight." Plaintiff company at the same time wrote to the manager of the boat line on the Arkansas river to get the bales of linters from defendant and bring them down. On December 23d the defendant company wrote plaintiff as follows: "We have yours of the 20th inst., relative to the shipment of linters. You did not expect us to hold these linters all season, did you? We sold you this stuff in October, and expected to ship it out before the close of the season. We wrote you and expressed samples, and had very little satisfaction from you. About all we had was that you would ship on first boat. Several boats have landed at our wharf, and, with no instructions, we took it for granted that you did not care to handle the linters, therefore we sold to parties giving prompt instructions." To this letter plaintiff replied, expressing surprise at the sale of the linters, denying defendant's right to make it, and stating he would expect them to fill the order. Also stated that they had had no reply to their letter of November 19th, requesting that the linters be held, or any notice that they would not be, and demanded the difference in price between the linters sold and the market of that day. On January 5th they again wrote defendant, requesting an answer to their letter of the 24th and advice as to whether it would fill the order for the linters, to which letter defendant replied that it had sold the linters in September, 1909, had confirmation of the sale on October 4th, and replied thereto on the 8th, and: "We carried this as long as we thought it business to do so, and on November 16 we wrote you, asking for instructions. We have your letter dated November 19, 1909, asking us to hold these linters for a short time until you could give us instructions by boat. We had several boats and no instructions and on December 23 we wrote you canceling contract. We are not in the speculating business, and do not carry stocks for others without charge."

The manager of the defendant testified that the transaction was shown by the correspondence; that the...