Markstein Brothers Millinery Co. v. J. A. White & Co.

• Court: Arkansas Supreme Court
• Writing for the Court: SMITH, J.
• Citation: Markstein Brothers Millinery Co. v. J. A. White & Co., 151 Ark. 1, 235 S. W. 39 (Ark. 1921)
• Decision Date: 05 December 1921
• Docket Number: 26
• Parties: MARKSTEIN BROTHERS MILLINERY COMPANY v. J. A. WHITE & COMPANY

235 S.W. 39

151 Ark. 1

MARKSTEIN BROTHERS MILLINERY COMPANY v. J. A. WHITE & COMPANY

No. 26

Supreme Court of Arkansas

December 5, 1921

Appeal from Nevada Circuit Court; George R. Haynie, Judge; reversed.

Judgment reversed and cause remanded.

H E. Rouse, for appellant.

1. The authority of a drummer is to take orders and submit them to their employers for approval. If he claims authority in excess of soliciting orders, he must prove it. 101 Ark. 68. Dreher, it is shown, had no authority to make the agreement with reference to the return of the goods; but, if he made such agreement, it was an unauthorized act which was never ratified by appellant. 64 Ark. 217; 105 Ark. 512; 76 Id. 472; 2 C. J. L. § 116. The finding of fact by the trial court that Dreher made the agreement is not a finding that the act was authorized, or that appellant accepted the order and shipped the goods with knowledge of the agreement, and thereby ratified the act, and that finding is not conclusive of these issues. 79 Ark. 357; 97 Id. 620, 621.

2. The burden of proving the alleged custom or usage was on the appellee, and knowledge thereof must be brought home to the appellant. 118 Ark. 316; 176 S.W. 318; 97 Ark. 613, 319; 62 Id. 33; 81 Id. 550.

A local custom or usage must be specially pleaded, and it must be proved specifically that the party to be charged knew of the custom and contracted with reference to it. 2 Elliott on Contracts, § 1786 and note 62; 54 N.E. 890; 89. Ark 595.

3. The time for inspection and return of the goods was fixed by the notice accompanying the invoice. If the time limited in the notice, five days, was not sufficient, appellees must, at least, have exercised their right to return within a reasonable time. 230 S.W. 9 (Ark.).

Randolph Hamby, for appellee.

Aside from the question of custom, the fact that appellant's agent had previously sold the same character of goods to appellee upon the same terms and conditions as contended for in this case, and that appellant had assented thereto or at least not disavowed, was such course of dealing that the agent thereby derived apparent authority to continue such contracts, at least until notice to appellee of a discontinuance of such authority. 21 R. C. L. 855; 34 L. R A. (N. S.) 440; 142 Ark. 565; 21 R. C. L. 907; 59 L. R. A. 294.

OPINION

SMITH, J.

This suit was brought to recover the purchase price of eighty-six hats bought by appellees from appellants, amounting to $ 165.05. The order therefor was given by appellees to one Dreher, a traveling salesman for appellants. Appellees admit giving the order and receiving the hats, but defend upon the ground that the purchase was made upon the condition that a reasonable opportunity should be given to sell the hats and thereafter the unused hats might be returned and credit therefor given on the bill. There was testimony that it was the custom in Prescott, where appellees did business, to buy hats from commercial salesmen on these terms, and appellees offered testimony that Dreher had sold hats to them and to another merchant on these terms.

It is admitted, however, that at the time Dreher is alleged to have sold hats on the terms stated he did not represent appellant company, but was traveling for another hat manufacturer, and, so far as the testimony in regard to custom is concerned, it may be said that this testimony showed only a local custom at Prescott, and did not go to the extent of showing a usage of the trade, with reference to which all dealers would be presumed to have contracted. Calhoun v. Ainsworth, 118 Ark. 316, 176 S.W. 316; Exchange National Bank v. Little, 111 Ark. 263, 164 S.W. 731; Cage v. Black, 97 Ark. 613, 134 S.W. 942; City Electric Street Ry. Co. v. First National Exchange Bank, 62 Ark. 33, 34 S.W. 89; Ward Furniture Co. v. Isbell, 81 Ark. 549, 99 S.W. 845.

The order for the hats was received by appellants on December 14, 1918, and, as received, was an open order for a selection of hats amounting to $ 150. A copy of this order was left with appellees, and the original was sent to appellants. The order, as written by Dreher and as received by appellants, made no mention of any agreement in regard to the terms of the sale and was apparently an open order for hats. Appellants acknowledged the order as an open selection order, and in conformity therewith made a selection of hats amounting to $ 156.05, and the hats were shipped on that date. On the day of shipment appellant mailed to appellees an invoice of the hats shipped, in which appeared the following:

"SPECIAL --These goods were made expressly for you. We have been put to expense of paying labor and cutting materials for your order. We will under no conditions accept the return of any goods." And in the envelope with the invoice was a notice printed in large red letters stating that,

"OWING TO THE LOSS CAUSED BY "UNJUSTIFIABLE RETURNS

"The National Millinery Association has adopted rules as follows:--

"'No goods will be accepted for return unless returned within 5 days after receipt of goods.'

(Signed)

"MARKSTEIN BROS. MILLINERY CO.

"Birmingham, Alabama."

Appellees received the goods, sold what they could, and on May 10, 1919--which was seventy days after their receipt--returned $ 51.33 worth of hats with a check for $ 104.72. Appellants refused to receive either the hats or the check and returned both.

Dreher denied that he had sold hats upon the condition that any part of the order might be returned later than five days after their receipt; but the court, sitting as a jury, found "that the defendants are not indebted to the plaintiff in the sum of $ 51.33, for...