O'Leary Produce Company v. Pride

• Decision Date: 22 February 1926
• Docket Number: 183
• Parties: O'LEARY PRODUCE COMPANY v. PRIDE
• Court: Arkansas Supreme Court

280 S.W. 366

170 Ark. 516

O'LEARY PRODUCE COMPANY v. PRIDE

No. 183

Supreme Court of Arkansas

February 22, 1926

Appeal from Sebastian Circuit Court, Fort Smith District; John E Tatum, Judge; affirmed.

Judgment affirmed.

Daily & Woods, for appellant.

Lake Lake & Carlton and John D. Arbuckle, for appellee.

OPINION

MCCULLOCH, C. J.

Appellee has been engaged in the business of buying and shipping strawberries at DeQueen, Arkansas, and he sold and shipped to appellant, at Fort Smith, on order, twenty-five crates of strawberries at the agreed price of six dollars per crate. Appellant received and opened the crates and put the berries on sale, but claims that they were badly damaged and unsalable, and refused to pay for them. This is an action instituted by appellee against appellant to recover the price.

There is a conflict in the testimony as to the condition of the berries. Appellee introduced considerable testimony to the effect that the berries, when shipped at DeQueen, were in such condition as to reach destination in good order and in salable condition. The testimony adduced by appellant is to the effect that the berries were in poor condition on arrival at Fort Smith, and were unsalable; that appellant discovered the condition of the berries as soon as they were delivered by the express company, and that appellant's agent called the attention of the express agent after the delivery to the fact that the berries were in bad condition, and that the agent made an indorsement on the receipt for payment of charges that the berries were "more or less overripe and moulded."

According to the testimony, appellant put the berries on sale and made sales of many crates to retail dealers, but all were returned because of the fact that the berries were unsalable. Two or three crates were sold at a small sum to a peddler and the remainder was finally dumped as being worthless. Appellant did not notify appellee of the condition of the berries until two or three weeks later, and then refused payment.

There are numerous assignments of error with respect to the introduction of testimony, and also as to objections to the court's charge, but we are of the opinion on the undisputed evidence in the case that appellant is liable; therefore it is unnecessary to discuss any of the assignments of error.

It is undisputed that there was no express warranty as to the quality of the berries, and that the shipment by the carrier was directed to appellant, so that the latter had an opportunity to inspect the berries, and did inspect the same and found them to be in bad condition. Appellant accepted the berries with...