Louisiana Molasses Company, Ltd. v. Fort Smith Wholesale Grocery Company
Decision Date | 14 January 1905 |
Citation | 84 S.W. 1047,73 Ark. 542 |
Parties | LOUISIANA MOLASSES COMPANY, LTD., v. FORT SMITH WHOLESALE GROCERY COMPANY |
Court | Arkansas Supreme Court |
Appeal from Sebastian Circuit Court, Fort Smith District, STYLES T ROWE, Judge.
Reversed.
This is a suit by the Fort Smith Wholesale Grocery Company against the Louisiana Molasses Company, Limited, for the sum of $ 248.38, which plaintiff alleged defendant obtained from it by reason of the deceit of its agent in making certain false and fraudulent representations in regard to the character of certain molasses, to the effect that such molasses would not ferment and sour, which representation induced plaintiff to buy the molasses. It is alleged that the representation was false, and was made with knowledge of its falsity, and that plaintiff was ignorant of its falsity, and believed at the time it was true, with other allegations constituting a good complaint for deceit.
Defendant answered denying that its agent made the representation alleged, and that the plaintiff was induced to purchase the molasses by reason of such representation. It denied that defendant obtained the sum sued for by reason of any false or fraudulent statement as to the character of the molasses sold, or through the deceit of its agent. The answer denied that any such representation was made, but alleged that if it was made by its agent it was unauthorized, unwarranted unusual and without the custom of trade in such goods. The answer set up that the contract referred to in the complaint was in writing, and contained no warranties. The answer set up also that, if the representation was made, it was a false representation of a future condition of affairs, and therefore would not constitute a cause of action against appellant. It set up also that the goods were sold upon a contract providing that claims must be made within three days after the receipt of goods, and that the goods were shipped in good order and received in good order, and no claim was made within the three days. The answer further set up that plaintiff accepted the goods after an opportunity to investigate same, and, after an inspection and acceptance of the goods, paid defendant for same, and hence is estopped from asserting that the goods were not as represented.
There is no dispute as to the original contract between the parties, which consisted of two orders, as follows:
2 bbls 102 Syrup
41
9 bbls Fancy O. K.
34
5 1/2 bbls Fancy O. K.
36
16 bbls Cane Juice
32
5 1/2 bbls Cane Juice
34
1 bbl Belle Rose
28
7 bbls Dewey O C R
23
5 1/2 bbls Dewey O C R
25
1 bbl Honey Dew
23
1/2 bbl Pecan
23
1 bbl Co.
8 bbls 101 Syrup
36
8 bbls Fancy O. K.
34
5 1/2 bbls Fancy O. K.
36
9 bbls Cane Juice
32
5 1/2 bbls Cane Juice
34
2 bbls Dewey R B
23
1 1/2 bbls Dewey R B
25
3 bbls pure M R B
20
1 bbl Cleveland R B
21
F. O. B. Fort Smith.
Parol evidence as to the alleged false representations of defendant's agent was offered over defendant's objection.
Among other instructions, the court charged the jury as follows:
The cause was submitted to the jury, which returned a verdict for the plaintiff for the amount sued for. Defendant has appealed.
Judgment reversed and cause remanded for new trial.
Hill & Brizzolara, for appellant.
This action is in tort. 38 Ark. 338. A purchaser takes the risk of the quality of an article sold, unless there be fraud or warranty. 45 Ark. 288. The warranty was not provable by parol. 38 Ark. 338; 2 Benj. Sales (Corbin), § 942; 141 U.S. 510. The face of the written contract itself is the test of its completeness. 14 Am. & Eng. Enc. Law (2d Ed.), 1090; 44 N.J.L. 343. it was not competent for the defendant to prove an express warranty by parol. 9 Vt. 116. The warranty of quality is a part of the contract of sale, and cannot be proved as a collateral undertaking when there is written evidence of the sale. 97 Mass. 155; 13 Allen, 353; 12 Metc. 353; 58 Ia. 579; 79 F. 43, 611. An estoppel must, in general, have reference to facts, past or existing. 64 Ark. 106; 14 Am. & Eng. Enc. Law (2d Ed.), 33; 105 U.S. 553. There was no evidence of the essentials to the action for false representations. 38 Ark. 339; 60 Ark. 389; 14 Am. & Eng. Enc. Law, 86; 48 Ark. 147.
Winchester & Martin, for appellee.
Appellee had the right to affirm the contract and sue for breach of warranty. 30 Ark. 540; 38 Ark. 340; 22 Ark. 459; 3 Parsons, Contr. 784-5; 1 Story, Contr. § 506. The statments made by Adams were material to and induced the making of the contract. 47 Ark. 164; 11 Ark. 58; 33 Cal. 609; 42 Conn. 9; 14 Am. & Eng. Enc. Law, 101; 125 Pa.St. 52; 15 Ark. 114. Adams' knowledge of their falsity was immaterial. 2 East, 446; 60 Ark. 387; 2 Disney (Ohio), 482. There was no mere puffing of goods; it was false representation. 105 U.S. 553. The instructions were proper. 48 Ark. 145; 38 Ark. 345; 30 Ark. 540.
WOOD, J. HILL, C. J., did not participate.
The pleadings show, and appellee properly concedes, that this is an action for deceit based upon certain alleged false and fraudulent representations concerning the quality of molasses. The action not being based upon a contract of warranty, verbal or written, it is obvious at a glance that instructions numbered, respectively, four and five were erroneous. These instructions are based upon the idea that the suit was upon oral representations that amounted to a verbal contract of warranty, and they authorized recovery if appellant's agent made certain representations in regard to the molasses which proved to be false, regardless of whether such representations or verbal warranty was made or given to deceive and defraud the party to whom it was made or given. Such instructions might be proper in a suit upon a contract of warranty, verbal or...
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