Market Produce Co. v. Holland

• Decision Date: 04 May 1931
• Docket Number: No. 274.,274.
• Citation: 38 S.W.2d 317
• Parties: MARKET PRODUCE CO. v. HOLLAND.
• Court: Arkansas Supreme Court

Page 317

38 S.W.2d 317

MARKET PRODUCE CO. v. HOLLAND.

No. 274.

Supreme Court of Arkansas.

May 4, 1931.

Appeal from Circuit Court, Logan County; J. O. Kincannon, Judge.

Suit by W. L. Holland against the Market Produce Company. Judgment for plaintiff, and defendant appeals.

Reversed, and cause dismissed.

R. S. Dunn, of Booneville, for appellant.

Williams & Williams, of Booneville, for appellee.

SMITH, J.

This litigation arose out of the sale of 25 cases of eggs to appellant by appellee, which were delivered at Mansfield, Ark., and carried by appellant therefrom in a truck to Shreveport, La., a distance of 230 miles. This trip was made on a very hot day, over a road in which there were several detours, and, when the eggs reached Shreveport and were there inspected, many of them were in bad condition. When appellant discovered the unsaleable condition of many of the eggs, he called appellee over the long-distance telephone, and the parties discussed the condition of the eggs, but they differ as to the settlement arrived at in their conversation over the telephone.

At the trial from which this appeal comes, appellee testified that the eggs were in good condition when delivered at Mansfield, while appellant testified that the condition of the eggs when they reached Shreveport was such as to demonstrate that their condition was bad when they were delivered at Mansfield. This issue of fact was submitted to the jury, and is concluded by the jury's verdict.

The eggs were sold at $5.75 per case, which made the contract price for the entire 25 cases $143.75, and suit was brought for this amount, less a credit of $66.26, and from a judgment for that amount is this appeal.

After the telephone conversation, and pursuant to it, as appellant contends, a statement of the condition of the eggs, as disclosed by this inspection, was prepared, which reads as follows:

                237 Doz. No. 1 eggs at $5.75 per case, $45.42
                193 Doz. No. 2 eggs at $3.25 per case,  20.84
                318 Doz. Rotts, 
                                                       ______
                    Total, ........................... $66.26
                

This statement was attached to a check, upon the upper left-hand corner of which this notation was printed, in small type: "This check is in settlement of the following account, if incorrect please return without alteration."

Appellee, plaintiff below, testified that he did not read this notation, but he did not deny knowing that the check had been tendered in full settlement of the account for the eggs.

After receiving this statement, with the check attached, appellee sent appellant a telegram reading as follows: "I am returning you check and drafting in full as per agreement, letter following."

But appellee did not return the check, as the telegram stated. On the contrary, he consulted his attorney, who advised him to cash the check and sue for the balance due on the eggs, and this he did. This advice was upon the assumption that appellee had delivered the eggs of the quality contracted for at Mansfield, and that there was no bona fide controversy as to the amount due.

But there was a controversy about the amount due, and, while the verdict of the jury reflects that appellant was wrong in its contention, the fact remains that there was a controversy. The telephone conversation, the telegram, and the fact that appellee advised with his attorney before cashing the check are conclusive of that fact.

We have,...