Main v. El Dorado Dry Goods Company

• Decision Date: 13 May 1907
• Parties: MAIN v. EL DORADO DRY GOODS COMPANY
• Court: Arkansas Supreme Court

102 S.W. 681

83 Ark. 15

MAIN v. EL DORADO DRY GOODS COMPANY

Supreme Court of Arkansas

May 13, 1907

Appeal from Union Circuit Court; C. W. Smith, Judge; affirmed.

W. F Main & Co., a firm, sued the El Dorado Dry Goods Company, a corporation. Judgment was for defendant, from which plaintiffs appealed.

Judgment affirmed.

R. G Harper and Thornton & Thornton, for appellants.

Smead & Powell, for appellee.

OPINION

BATTLE, J.

The contract sued on and goods sold are the same in this case as in Main v. Dearing, 73 Ark. 470, 84 S.W. 640, the names, except W. F. Main & Co., and dates being the only difference. The contracts were made with W. F. Main & Co., and they are plaintiffs in both cases.

In this case the goods were never offered for sale by the defendant, but upon examination of them it refused to accept and offered to return them. No witness in behalf of the plaintiffs testified as to their value.

Defendant proved that the goods were purchased from the manufacturers, without the opportunity to examine or inspect, and upon the recommendation of the sellers. It adduced evidence in the trial which tended to prove that they were not merchantable, and were of no value for the purpose purchased. One witness testified that some of the articles purchased were worth the amount charged for the same.

Over the objection of the plaintiff the court instructed the jury, in part, as follows:

"2. The jury are further instructed that, notwithstanding the contract of sale of the goods stipulated that any article failing to wear satisfactorily would be duplicated free, if returned within five years, and that such might be exchanged for new goods within twelve months from date of invoice, and that purchaser waived all rights to claim failure of consideration, or not according to order, unless defendant had exhausted the terms of warranty and exchange, it is a good defense that the articles are not merchantable and had been returned, or offered to be returned, within a reasonable time after goods were received, and that goods purchased by the defendant were never shipped, and that the goods furnished by the plaintiffs were not the goods ordered.

"3. If you find from the evidence that plaintiff sold the bill of goods to defendant which is sued for in this action, and that defendant did not have the opportunity of inspecting the goods before the sale, but relied on plaintiff's knowledge of its goods and its...