Kuros v. Banner Cone Co.

• Decision Date: 27 June 1921
• Docket Number: (No. 68.)
• Parties: KUROS et al. v. BANNER CONE CO.
• Court: Arkansas Supreme Court

Page 582

232 S.W. 582

KUROS et al. v. BANNER CONE CO.

(No. 68.)

Supreme Court of Arkansas.

June 27, 1921.

Appeal from Circuit Court, Jefferson County; W. B. Sorrells, Judge.

Action by the Banner Cone Company against Charles J. Kuros and others. Judgment for plaintiff, and defendants appeal. Affirmed.

A. R. Cooper, of Pine Bluff, for appellants.

Reinberger & Reinberger, of Pine Bluff, for appellee.

WOOD, J.

The Liberty Ice Cream & Candy Company (hereafter called appellants), a partnership composed of Chas. J. Kuros and others, was engaged in business at Pine Bluff, Ark. The Banner Cone Company (hereafter called appellee) is a corporation engaged in the manufacture of ice cream cones in the city of Ft. Worth, Tex. On September 9, 1919, the appellee's traveling salesman took an order from appellants, given by Mr. Kuros, one of the partners and manager of appellants, for ice cream cones. By the terms of the order appellants agreed to purchase from the appellee "500 M ice cream cones at the price of 32 per one hundred cones, to be shipped by said Banner Cone Company in said quantity and on dates as follows." Then follows the future dates for the monthly shipments.

On the 27th of January, 1920, the appellants wrote the appellee as follows:

"Please cancel our order for 500 M cones, future shipment. On account of the increase of price on cream, we expect very light business this summer. Should we find that we may need cones later, will let you hear from us."

The appellee answered this letter, refusing to cancel the order, and among other things saying:

"We are willing to revise our price somewhat, to enable you to meet those cheap prices, but we are not willing to cancel your order entirely. We have protected you, should the price have advanced. Should you want to take your order in two shipments, we shall be glad to favor you by doing so, shipping 250,000 March 15th, and the balance in 30 or 60 days, and we will revise price to 30 cents instead of 32 cents."

On the 5th of March, 1920, the appellee again wrote the appellants saying:

"Please refer to our letter of January 29th, and let us hear something from you regarding your order of ice cream cones, which is due to go forward March 15th."

On March 6, 1920, the appellants wrote the appellee a letter, the same in substance as its former letter, and saying: "Please cancel our order for cones." On March 10, 1920, the appellee wrote the appellants, again refusing to cancel the order, and offering to allow the appellants to take one-third of the order at that time, and the balance by September 1st at a price of 30 cents for the first shipment and 32 cents on the second shipment, and advising the appellants as follows:

"Unless we hear from you by the 15th of this month, taking some steps to handle your contract for ice cream cones, we shall be forced to turn the matter over to an attorney and see if it is not collectible."

The appellee received no answer to this last letter and placed the claim in the hands of its attorney, as shown by a letter from the appellants to the appellee of May 26, 1920, in which appellants referred to the order given to appellee, saying:

"We asked you in January to cancel this order. It was our mistake not examining closely the duplicate order. We intended the order to read 500 boxes, 100 cones each, 32c per 100. Your representative made the order to read 500 M. We are not jobbers of cones, and handle them only in connection with our ice cream business. 500 M cones would last us at least six years. We have cones on hand left over from last year, but could use 500 boxes, 100 cones each, this season, together with the amount on hand. We certainly did not intend to order 500 M — purely an oversight in our buyer. We will accept 500 boxes cones, 100 each, which would be the right thing. We hope that you may consider the awful error made and do the fair thing."

There was testimony on behalf of the appellee tending to show that the order was taken as set forth therein and the correspondence relating thereto; that the appellee had manufactured the cones called for by the order and was ready to deliver them on March 15th; that appellee had endeavored to have the appellants accept the same, and that appellants had refused to do so, and had attempted to cancel the order; that appellee had not shipped the cones, because no assurance was given by the appellants that they would pay the cost of transportation, if same were delivered to the railroad company and...