O'Leary v. Keith

• Decision Date: 22 April 1918
• Docket Number: (No. 309.)
• Citation: 203 S.W. 38
• Parties: O'LEARY v. KEITH.
• Court: Arkansas Supreme Court

203 S.W. 38

O'LEARY v. KEITH.

(No. 309.)

Supreme Court of Arkansas.

April 22, 1918.

Appeal from Circuit Court, Benton County; J. S. Maples, Judge.

Action by J. H. Keith against W. A. O'Leary. Judgment for plaintiff, and defendant appeals. Affirmed.

This action was brought by the appellee against appellant to recover a balance of $314 alleged to be due on the purchase price of 986 barrels of apples which appellant purchased of the appellee. Appellant denied that it was due appellee any sum. It set up that it had entered into a contract with the appellee to buy eight cars of apples No. 1 and No. 2 grade; that appellant had received these cars, and they were not up to the specified grade; that they were inferior in quality, and the barrels lacked about four or five inches of being full, and were therefore not properly packed; that, while appellant was unloading the cars of apples Russell Keith, son of appellee, and his agent for the transaction of the business conducted by the appellee, appeared at appellant's place of business at Little Rock. Appellant showed Russell Keith several barrels of the apples, and the latter agreed to deduct 50 cents per barrel on the shipment on account of their inferior quality and because they were slack; that up to the time that Keith visited appellant the latter had paid all the invoice in full, but thereafter appellant made deductions as agreed upon with young Keith, and mailed checks to appellee in payment of each car of apples with the initial and car number of each check; and that plaintiff accepted and cashed the checks without any objection. Appellant relied upon the agreement with young Keith, and sold the apples on the market at a lower price by reason of such agreement; that appellee made no objection to the 50 cents per barrel deduction from the original contract price until several months thereafter, and was therefore estopped from making any claim on him on that account. The appellant alleged that he had been damaged, by reason of the inferior quality and slack packing, in a greater sum than the amount deducted in the agreement with young Keith, and that the appellee was therefore not entitled to recover any amount whatever from him.

The undisputed evidence shows that the appellee sold to appellant eight cars of apples on which appellant made complete payment as to two. On the other six cars he deducted 50 cents per barrel. The testimony on behalf of the appellant tends to prove that this deduction was made by agreement with the appellee through his son, who was acting as appellee's agent or partner. Testimony on behalf of appellant tends to prove that Russell Keith visited Little Rock, and upon being shown the apples agreed that they were short in quantity and inferior in quality, and for that reason made the deduction that appellant remitted to appellee the full amount of the invoices on the six cars, less 50 cents per barrel. The remittances were by separate checks for each carload, having in the left-hand corner of the check the number of the car. Each statement sent and attached to the check had the corresponding number of the car. On each statement appellant had expressly stated that the check was in payment of the invoices, and appellant requested an acknowledgment of the receipt of the check. The appellee admitted receiving the statements, and knew prior to receiving them that his son, Russell, had had a controversy with appellant in regard to the apples.

The testimony on behalf of the appellee tended to prove that Russell Keith was not his agent or partner, and was not authorized by appellee to make any deductions from the contract price of the apples; that the apples were of the quality, and were packed in such manner as to show that the appellee did not breach his contract. The testimony on behalf of the appellee also tended to show that appellee, while receiving the checks, did not make any acknowledgment to appellant in receipt of the same, and he did not accept the same in full payment and satisfaction of the amount claimed by him to be due from appellant on the contract.

The court instructed the jury, stating the issues, and told them that the burden was upon the plaintiff (appellee) in the whole case to show his right to recover and the extent of his recovery by a preponderance of the evidence, and that the burden was upon the defendant (appellant) to prove that Russell Keith was the agent of the appellee, and that he, as such agent, agreed with defendant to deduct 50 cents per barrel for want of proper grade and packing, and also to prove that there was a settlement in full by accord and satisfaction. The court also gave the following instructions, to which appellant offered no objections:

"If you find from a preponderance of the evidence in the whole case that plaintiff in all things substantially complied with his said alleged contract with defendant, then you will find for the plaintiff the amount sued for, unless you further find that Russell Keith, as agent of J. H. Keith, agreed with defendant that he (defendant) might deduct from the contract price the per cent. as alleged by defendant, or that plaintiff, knowing that the contract was or would be in dispute, accepted and cashed checks for a lesser...