McKinney v. Ragland & Company
| Decision Date | 03 March 1924 |
| Docket Number | 205 |
| Citation | 259 S.W. 17,163 Ark. 96 |
| Parties | MCKINNEY v. RAGLAND & COMPANY |
| Court | Arkansas Supreme Court |
Appeal from Jefferson Circuit Court; T. G. Parham, Judge; reversed.
Judgment reversed and case remanded.
George Brown and Brockman & Lucas, for appellants.
There was evidence from which the jury could have found that there was an acceptance of the property, taking the contract out of the statute of frauds. It was therefore error to take the case from the jury. 137 Ark. 397. The facts distinguished the case from Richardson v. Fowler, 154 Ark 92.
Crawford & Hooker, for appellees.
Delivery to a common carrier, consigned to shipper's order, is not a delivery to the purchaser, so as to take the contract out of the statute of frauds. 137 Ark. 401; 250 S.W. 24; 249 S.W 982; 154 Ark. 92-95; 116 Ark. 198; 111 Ark. 521.
This is an action by the appellants against the appellees to recover damages for an alleged breach of contract. The appellants alleged that appellants and appellees entered into a contract whereby appellants sold to appellees 258 bales of cotton of the value of $ 20,543; that appellees breached the contract by refusing to pay for the cotton. Whereupon the appellants resold the cotton in order to minimize their damages, and the best available price they could obtain was $ 19,122; that the difference between the contract price at the time the cotton was sold and delivered to appellees and the price appellants obtained for the cotton amounted to the sum of $ 1,805, for which the appellants pray judgment.
The appellees, in their answer, denied the allegations of the complaint, and pleaded, in defense to the action, the statute of frauds. N. A. McKinney testified that, about the 20th day of February, 1922, a man by the name of Stone, representing the appellees, came to appellant's place of business at Rison, Arkansas, and took samples of 258 bales of cotton. Witness called up one of the Raglands, of the firm of appellees, and asked him to make a price on the cotton, and, if he could not do so, to send the samples to Camden to a man there who wished to buy. The result of the negotiations was that Ragland offered the witness 17 1/4 cents per pound for the cotton, which the witness accepted. The cotton was to be delivered f. o. b. cars at Rison, on the platform. Witness proceeded to deliver the cotton on the platform of the railway company at Rison for shipment to the appellees at Pine Bluff, Arkansas. He did not leave out a single bale that Stone had taken samples of. After most of the cotton was on the platform, on the second day after the contract was entered into, Ragland called up witness, and asked witness not to ship the cotton that evening. He did not say he was not going to take it. Witness told Ragland that the cotton was in a dangerous place on the platform, and might get burned from passing trains. Ragland told witness that he would call again in an hour. In about an hour he called witness and said,
Witness considered that he had sold the cotton to appellees, and he drew on appellees for the price of the cotton, to be paid for at Rison. The cotton was all to be paid for when it arrived at the Pine Bluff compress. Witness did not know that Ragland would not take the cotton until he refused to pay the draft.
Witness was particular about having the cotton insured, because he retained a lien on it for the purchase price, and was anxious to protect his vendor's lien.
The cotton delivered was the identical cotton, bale for bale, that Stone asked samples of. When appellees refused to pay the draft, witness resold the cotton in Pine Bluff, at the suggestion of Ragland to try to sell the same and save any loss. Witness sold the cotton on March 20, 1922, for the best available price. It brought 16 cents per pound.
Ragland & Company told witness that they would not take it and pay for it, because they did not have the money. On cross-examination witness testified that on February 22, 1922, Fitzhugh, of the firm of appellees, called witness over the telephone, and said he would take the cotton. The next day, the 23d, he told witness not to ship the cotton that evening. Witness had a contract with appellees to attach the draft to the bill of lading on arrival of the cotton. Witness shipped the cotton on the 25th of February, and wrote the appellees a letter, saying:
"I am shipping you today the cotton sold to you by telephone Wednesday."
N. E. McKinney, of the firm of appellants, testified that he went with Stone, and helped him gather the samples. The 258 bales of cotton sold to appellees at 17 1/4 cents would have brought $ 20,543.15. It was sold for 16 cents, making the net difference $ 1,805.15. In a conversation witness had over the telephone with appellees, they wanted to know if it would be all right for them to pay the drayage costs and appellants to take the cotton back, and witness told them "no." They wanted to pay all damages, and have appellants take the cotton back. Witness went to Pine Bluff about the third day after the sale. They had not told witness before that they were not going to take the cotton, but would not answer the telephone. When witness went to Pine Bluff, appellees told witness that the firm appellees had sold the cotton to was about to lay down on them. They showed witness a telegram from that firm, saying: "Cancel the McKinney cotton." Appellee gave no other reason why they would not take the cotton and accept the draft. The bill of lading was made out "R. A. McKinney & Sons, notify Ragland & Company," what is generally called shipper's orders. The draft was attached to the bill of lading. The first witness knew that appellees were not going to take the cotton was when they refused to pay the draft. The cotton had then left Rison.
Ragland Fitzhugh, of the firm of appellees, testified that, about the 22d day of February, 1922, he told Stone to go to Rison and get samples of McKinney's cotton. Stone came back with the samples. Witness got in communication with a Dallas man who agreed to take the cotton at a certain price. Then witness called up McKinney, and bought the cotton. The price was 17 1/4 cents, subject to redrawn compress samples and compress weight. Witness wired the man in Texas that he had made the purchase. The next day the Texas man canceled his order. Witness then wired McKinney right away. Witness bought 177 bales, with the privilege of four or five bales over. He did not agree to buy 258 bales, and never had the samples of that number. Within two or three days after that McKinney asked what appellees were going to do about it, and witness told him that the bank would not allow appellees to carry any cotton, so they could not pay for it. Witness showed McKinney the telegram, and he knew definitely when he came into the office that appellees were not going to take the cotton. McKinney shipped 258 bales, when witness had bought but 177. The first witness knew of the 258 bales was when the invoice came in. That number was not discussed over the telephone. Some samples came from appellants after that, but witness did not open them. Stone was working for Ragland & Company when he took the samples, and was authorized to take them. Witness denied that he had a conversation with Walter Wilkins, Jr., about the 23d or 24th of February, in which he told Wilkins that he had bought 258 bales of cotton from McKinney at Rison. McKinney was at Pine Bluff the next day after witness telephoned him that he could not...
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