Laflin v. Brooks

• Decision Date: 16 December 1929
• Docket Number: (No. 51.)
• Citation: 22 S.W.2d 169
• Parties: LAFLIN v. BROOKS et al.
• Court: Arkansas Supreme Court

22 S.W.2d 169

LAFLIN v. BROOKS et al.

(No. 51.)

Supreme Court of Arkansas.

December 16, 1929.

Appeal from Circuit Court, Polk County; B. E. Isbell, Judge.

Suit by W. A. Brooks, Jr., and others against B. B. Laflin. Judgment for plaintiffs, and defendant appeals. Affirmed.

W. N. Martin and Alley & Olney, all of Mena, for appellant.

Duke Frederick, of Mena, for appellees.

MEHAFFY, J.

The appellees filed suit in the Polk circuit court alleging that they entered into a contract with defendant whereby they bought 46 bales of cotton for the price of 18.80 cents per pound for immediate shipment terms f. o. b. cars, bill of lading, compress weights, free of damage subject to Texas Cotton Association Rules, and cotton to be at seller's risk until bill of lading signed.

They also alleged that defendant shipped said cotton and immediately drew a draft on plaintiffs at Dallas, Tex., for the price according to defendant's invoice weights, the amount of the draft being $4,382.29.

Plaintiffs paid the draft, and the cotton was received thereafter, and upon examination it was discovered that 23 bales were in damaged condition. Plaintiffs were required to have the said 23 bales reconditioned and the damaged cotton removed, and there was a loss to the plaintiff of $348.55.

Plaintiffs afterwards filed an amendment to the complaint, alleging that after the institution of the suit they had sold the damaged cotton for $134.20, leaving the amount of their damage $214.35, for which they asked judgment.

Defendant filed answer denying the material allegations of the complaint.

The deposition of J. L. Flowers, one of the plaintiffs, was taken, and he testified about making the contract, and that it was made by letters and telephone. This witness testified very positively that the samples were submitted to plaintiffs; that the price was 18.80 cents for immediate shipment, terms f. o. b. cars, bill of lading, compress weights, free of damage, subject to the rules of the Texas Cotton Association. He said "compress weights and free of damage" meant that the final settlement will be made according to the weights rendered by the compress. "Free of damage" meant any damage found on the cotton is to be removed before the cotton is weighed at the compress at the expense of the seller.

He also testified that there was a purchase confirmation sent to Laflin.

The letters were introduced in evidence and a copy of the purchase confirmation.

He also testified that they paid the draft, and that there was a balance due them because of the damaged cotton of $214.35.

Some other witnesses testified for the plaintiffs, and the defendant testified in his own behalf that he sold the cotton, but that the weights to govern were the Mena weights, and that in the telephone conversation there was nothing said as to the weights being governed by the cotton association, or any-think like that; that he sold it on his own weights from the bonded warehouse weights at Mena; that he furnished samples and got them as nearly as possible, a four-ounce sample taken from each side of the bale. These samples were sent before the deal was closed, and that the deal was closed in conversation with Mr. Flowers over the telephone. He testified that no compress weights were mentioned, and that he heard nothing about damaged cotton until about 30 days afterwards; that there were no terms mentioned in the telephone conversation other than shipping orders and the price to be paid and the weight of the warehouse at Mena was to govern; that the things mentioned in the complaint with reference to Texas rules, compress weights, damages, etc., were never mentioned. He also testified that he did not receive the purchase confirmation from Brooks & Co. Nothing was said about cotton being free from damage.

There was a sharp conflict between the testimony of Flowers and defendant Laflin as to what the conversation over the telephone was. At the conclusion of the testimony the court, at the request of the plaintiffs, gave to the jury the following instruction: "You are instructed that if you find from a preponderance of the evidence that the plaintiffs purchased from the defendant 46 bales of cotton at the price of 18.80 cents per pound F. O. B. cars, cotton to be free from damage and settlement to be made according to compress weights on draft drawn by defendant on the plaintiffs, and that the defendant drew draft on plaintiffs for the full purchase price according to his weights and the same was presented to and paid by plaintiffs before said cotton was inspected and weighed at the compress and you further find from a preponderance of the evidence that upon arrival at the compress said cotton was in a damaged condition then the plaintiffs would be entitled to recover from the defendant herein the difference between the amount of the draft drawn by defendant and the total purchase price according to compress weights after removal of the damaged cotton less any amount received by plaintiffs for such...