Moore v. Ziba Bennitt & Co.
| Decision Date | 31 January 1921 |
| Docket Number | (No. 133.) |
| Citation | 227 S.W. 753 |
| Parties | MOORE v. ZIBA BENNITT & CO. |
| Court | Arkansas Supreme Court |
Page 753
v.
ZIBA BENNITT & CO.
Appeal from Circuit Court, Jefferson County; W. B. Sorrells, Judge.
Action by Ziba Bennitt & Co. against Mary K. Moore. From judgment for plaintiff, defendant appeals. Affirmed.
Danaher & Danaher, of Pine Bluff, for appellant.
Bridges & Wooldridge and Coleman & Gantt, all of Pine Bluff, for appellee.
WOOD, J.
The appellee, an Arkansas corporation, engaged in the business of buying and selling cotton in the city of Pine Bluff, Ark., brought this action against the appellant. The appellee alleged that the appellant for many years had been a planter engaged in the growing and selling of cotton; that Carter Murphy, appellant's son, had been for many years her duly authorized agent through whom she had sold the cotton and cotton seed grown by her; that Carter Murphy sold and agreed to deliver to the appellee the first 200 bales of cotton picked on appellant's plantation at Fairfield, Ark., for the price of 45½ cents per pound; that it was agreed that each of the bales should weigh 500 pounds and should be delivered to the appellee on board the cars at the compress in Pine Bluff as quickly as possible after the date of the agreement, and that the appellee should pay for the same according to the compress weight; that the cotton was ready for delivery October 29, 1919; that appellant had failed to deliver the same; that appellee had at all times been ready and willing to receive and pay for the cotton according to the contract; that appellee, relying on the contract, had contracted to sell the cotton and would be compelled to buy other cotton of the same grade and staple to comply with its contracts; that the market price of the cotton on the day the same should have been delivered was 75 cents per pound; that the difference between the price at which appellant agreed to sell the cotton and the market price of the cotton at the time when the same should have been delivered was 29½ cents per pound, or a total of $29,500, which the appellee had lost by reason of the failure of appellant to comply with her contract. The appellant denied all the allegations of the complaint and set up that the cotton alleged to have been sold exceeded in value the sum of $30, and pleaded the statute of frauds. The alleged contract was made an exhibit to the complaint and over the objection of appellant was introduced in evidence, as follows:
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"September 25, 1919.
"Mr. Carter Murphy, City—Dear Sir: This confirms purchase from you to-day of 200 bales of Mrs. Moore's staple cotton, as follows:
"100 bales first picked, f. o. b. Pine Bluff Compress, compress weight, 46 cents per pound.
"100 bales second picked, f. o. b. Pine Bluff Compress, compress weight, 45 cents per pound.
"Or the first 200 bales picked at an average price of 45½ cents per pound, f. o. b. Pine Bluff Compress, compress weights, we to take up freight bills.
"To be delivered as quickly as possible.
"Yours truly,
Ziba Bennitt & Company, Inc.
"By Ziba Bennitt, Pres.
"Above accepted September 25, 1919.
"Carter Murphy."
Ziba Bennitt, the president of the appellee company, testified substantially as follows: That he had been dealing with Murphy with reference to appellant's cotton for about six years; that he had bought cotton from him nearly every season. Murphy generally solicited witness in connection with the selling of the cotton. In the present instance, Murphy told witness that he had some cotton for sale and asked witness what he would pay for it. Witness offered him 46 cents per pound for the first 100 bales picked and ginned and 45 cents for the next 100 bales picked and ginned of the cotton grown on the Fairfield place. In the sales and purchases the matter had never been taken up with appellant, but was consummated directly through Murphy. The cotton that Murphy sold to witness under the contract in evidence was grown on appellant's plantation at Fairfield. The checks that were made in payment for the cotton of former sales were made payable to Carter Murphy. In the dealings witness had with Murphy witness knew that it was appellant's cotton that he was buying. Witness supposed that he had made at least eight or ten purchases from Murphy before the one in controversy. For the last of these purchases, a check was issued to Carter Murphy in the sum of $35,000. The check was introduced in evidence. This check was indorsed by C. B. Murphy to Merchants' & Planters' Bank with instructions to credit account of appellant, and the check was paid August 30, 1919. Witness supposed that Murphy was appellant's agent in all these dealings. In the purchase in controversy witness and Murphy agreed on a price that would average 45½ cents per pound. After witness and Murphy had agreed upon the terms of the sale, witness stated that he would confirm the oral contract in writing and asked whether he should address it to Mrs. Moore (appellant) or to Murphy, and Murphy replied to address it to him. Whereupon, witness prepared the contract in evidence.
There was no difference between this contract and other contracts made with Murphy except as to the price and quantity. The grade and staple of cotton produced on appellant's plantation at Fairfield was well known around Pine Bluff. It generally graded up to an average of 1¼-inch cotton, and witness understood at the time that he was buying cotton of 1¼-inch staple. Witness never received the cotton from Murphy, but ascertained that it was in compress and could have been delivered on October 29, 1919. Witness arranged to accept and pay for the same, but was advised by Murphy that appellant would not deliver the cotton at all. The market value of such cotton at that time in Pine Bluff was from 75 cents to 80 cents per pound. After that time it had ranged from 75 cents to $1 per pound. The recognized standard weight of a bale of cotton according to custom at Pine Bluff was 500 pounds. Murphy told witness that he was appellant's agent and witness knew that he was her agent because she intrusted the handling of her business to him and his authority to sell and collect for her cotton had never before been questioned. Witness did not know whether Murphy had consulted with appellant about these sales or not. Murphy seemed to have full authority in running the place and selling the cotton. The cotton sold was the Mary K. Moore cotton and it was so stated in the contract. Witness had the cotton purchased under the contract sold to spinners at 70 cents or better at the time appellant refused to deliver the same. All witness knew about Murphy's agency was from witness' dealings with him and the general understanding around Pine Bluff.
There was testimony of several other witnesses, over the objection of appellant, corroborating the testimony of Ziba Bennitt. Some of these witnesses had several times bought cotton belonging to the appellant grown on her Fairfield place from Carter Murphy. None of these deals had been made by the appellant herself, but were consummated solely through Murphy. One witness testified that the last check issued by his firm in such a transaction was issued to Murphy in payment of the cotton purchased from him belonging to appellant and that the check was indorsed by Mary K. Moore and Carter Murphy. One of the corroborating witnesses testified that he did not know whether appellant had authorized Murphy to make the sales or not.
The manager of the Cotton Oil Mill at Pine Bluff testified, over the objection of appellant, that for four years he had purchased cotton seed from Murphy from cotton raised on appellant's plantation at Fairfield. The accounts of the purchases were kept in the name of appellant. They were paid for by checks issued to appellant and she receipted the vouchers for same. Witness had had no
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discussion with Murphy as to what authority he had to make these sales.
The manager of the Pine Bluff Compress & Warehouse Company testified that for seven years cotton belonging to appellant had been sent to the compress of which he was manager. It was grown on her Fairfield place. The warehouse receipts were issued to her where it was not sold before it was shipped in. The witness' instructions with reference to the samples and delivery of the cotton were in all instances from Carter Murphy, representing appellant, until the present year. During the year 1919 the 212 or 215 bales of cotton sent to the compress from the plantation of appellant were consigned to her, but handled differently. Witness, during the early part of the season, had instructions from Murphy with reference to the cotton, but later appellant took the...
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