N. P. Sloan Company v. Barham

• Decision Date: 14 April 1919
• Docket Number: 184
• Citation: 211 S.W. 381,138 Ark. 350
• Parties: N. P. SLOAN COMPANY v. BARHAM
• Court: Arkansas Supreme Court

211 S.W. 381

138 Ark. 350

N. P. SLOAN COMPANY v. BARHAM

No. 184

Supreme Court of Arkansas

April 14, 1919

Appeal from Union Circuit Court; Chas. W. Smith, Judge; reversed.

Judgment reversed and cause remanded.

Powell & Smead, and Will C. Thompson, of Dallas, Texas, for appellant.

1. The court should have instructed a verdict for defendant. The title to the cotton did not pass until all the acts usual to a sale of cotton were complied with and there was no sale. 19 Ark. 573; 24 Id. 549. The cotton must be loaded on cars at the expense of plaintiff and bill of lading secured and appellant notified and draft drawn. There was no liability upon appellant, as Barham failed in a number of particulars and is not entitled to recover. 92 Ark. 287; 50 Id. 20; Benjamin on Sales, § 399; 2 Schouler Pers. Prop., § 27, et seq.; 5 Ann. Cas. 263; 2 L. R. A (N. S) 79; 77 Ark. 482; 113 Am. St. 160; 44 L. R. A. (N. S.) 463; 88 Ark. 270; 114 S.W. 216; 89 Ark. 342; 116 S.W. 1171 92 Ark. 287.

2. Under the undisputed evidence defendant below was entitled to judgment. 70 So. 686; 118 N.E. 239; 93 S.E. 1030; 192 Ill.App. 545; 84 S.E. 880; 22 N.W. 886.

3. Sloan & Co. were not liable, as no title to the cotton passed, Barham failing to segregate the cotton or load it or take bill of lading, or draw a draft or furnish an invoice. 79 Ark. 353; 78 Id. 511; Story on Sales, § 296; 29 Tex. 209; 90 S.E. 816; 112 F. 258; 80 Id. 878; 38 A. 212; 80 P. 963; 89 S.W. 1130; 75 N.W. 1; 74 Id. 670; 66 N.E. 1104. There was no delivery to a carrier so as to vest title. 80 Ark. 269.

3. The contract was an Arkansas one. The laws of Louisiana did not apply and were not plead. 72 S.W. 893. The offer to buy was accepted in Arkansas by Lake in Arkansas. Rul. Case Law, "Conflict of Laws," §§ 26-27; 15 R. I. 380; 2 Am. St. 902; 5 A. 632; 2 Elliott on Cont., § 1116. The cotton was to be delivered at El Dorado in Arkansas. 80 Ark. 399; 66 Id. 464; 33 Id. 645; 2 Elliott on Cont. 1112; 9 Cyc. 691; 91 U.S. 406; 23 S.W. 245.

4. Lake, defendant's agent, was without authority to bind it by the contract. 105 Ark. 111; 126 Id. 405. Plaintiff was charged with notice of Lake's want of authority. 105 Ark. 111.

5. There was error in the admission of testimony, or in the giving and refusal of instructions.

J. W. Elder and Mahony & Mahony, for appellee.

1. The record shows that the transaction and course of dealing between the parties constitute a contract as to render appellant liable for the purchase price of the cotton. The verdict of the jury has settled all conflicts in the evidence and their finding is conclusive as to the liability of appellant.

2. The sale was a Louisiana contract, and under Louisiana laws appellant became liable without delivery. La. Code, §§ 2552-2530.

3. The law of the case, see 42 Col. 442; 74 Conn. 675; 21 Ill. 526; 66 Kan. 463; 25 N.Y. 520; 33 Mich. 386; Kelton v. Lee, 35 Ore. 573; 123 Wis. 598; 135 Wis. 605; 31 Ark. 131; 100 U.S. 124.

4. There is no error in the instructions and the evidence supports the verdict. The instructions fairly state the law and there are no reversible errors.

OPINION

SMITH, J.

The appellant, hereinafter referred to as the company, is a large cotton company with principal offices in Philadelphia, and is extensively engaged in buying and exporting cotton. The company maintained an office at El Dorado, Arkansas, of which G. W. Lake was in charge, and at this point bought large quantities of cotton in the adjacent territory. Appellee, C. C. Barham, who was the plaintiff below, was a merchant and cotton buyer at Dubach, Louisiana, a town in the territory covered by Lake for his company. On December 26, 1917, Lake, at El Dorado, called Barham at Dubach over the phone, and in the conversation which then occurred contracted to buy forty bales of cotton at 29 cents per pound. Later in the day Barham called Lake over the phone and advised him that he knew of 110 more bales which he could buy at the same price, and Lake agreed to take that also. Thereupon Barham bought 115 bales of cotton at 28 3/4 cents per pound and sold Lake 110 of them at 29 cents. Barham testified that in consummating the negotiations he asked Lake about the insurance on the cotton and Lake answered that they would take care of the insurance, as they already had insurance on all the cotton they bought. Lake, however, denied that this conversation occurred.

Barham further testified substantially as follows:

Immediately after selling this cotton he proceeded to have it brought in from the country for shipment to El Dorado. The cotton was delivered to Barham at the warehouse in Dubach, where it was destroyed by fire on the night of December 29. On December 27 Barham made a list of the cotton then in the warehouse and completed this list on the 28th when the balance of the cotton was delivered to him at the warehouse, and in the afternoon of that day his bookkeeper mailed this list to the company at El Dorado. It was the custom of the warehouse people to issue a receipt for each bale of cotton, which gave the gin number of the bale and its marks and weight, the cotton being weighed as it was received at the warehouse. Barham took the tickets for the 150 bales he had sold the company and placed them in a wrapper on the back of which he wrote "S. C. Sloan Company"--having mistaken the initial letters of the company--and he deposited this package with his local bank. The warehouse people proceeded to load out this cotton as rapidly as they could secure cars, and two cars--one containing twenty-six bales of cotton and the other twenty-eight--were shipped and delivered to the company at El Dorado. A third car, containing twenty-six bales, was burned in the fire which destroyed the warehouse after a bill of lading from the railroad had been obtained therefor. On the morning after the fire Lake called Barham over the phone and asked if any of the company's cotton had been destroyed, and Barham answered that all of it had burned except fourteen bales, whereupon Lake directed that the fourteen bales be shipped, and this was done at once. Barham at the time asked Lake if he should draw against the company at El Dorado for the cotton that had been burned, but Lake told him not to do so until he had taken the matter up with the company. Later the company paid for the cotton burned in the car and for that shipped after the fire, but declined to pay for the fifty-six bales burned in the warehouse. Whereupon this suit was brought, and at the trial below judgment was recovered against the company for the value of the fifty-six bales burned in the warehouse, and this appeal has been duly prosecuted.

On behalf of the company there was testimony that the list which Barham said he made on the 27th and 28th was received through the mail in an envelope which bore a postmark the day after the fire. Lake admitted asking Barham about the fire and directing the shipment of the fourteen bales, but he stated that the conversation in regard to the draft covering burned cotton related only to the cotton destroyed in the car. Lake also denied having made any statement in regard to having insurance which covered the cotton in the warehouse.

As affirmative testimony and over the company's objection Barham had the cashier of the Citizens National Bank at El Dorado--the bank with which the company did its banking business at El Dorado--testify in regard to the insurance carried by the company. By this witness it was shown that the company had insurance "to cover all cotton in bales in the United States of America purchased by the assured or for their account, attaching from the moment the cotton becomes the property of the assured or legally at their risk, provided, however, that no cotton shall be covered hereunder prior to actual delivery to the assured or their agent, unless specifically identified by marks and numbers or other designation in possession of the assured or mailed to the assured prior to loss. * * *"

This testimony was given from a statement which had been furnished the bank as a basis in part to cover any risk from fire assumed by the bank in handling the drafts drawn against the company for cotton bought by Lake. Barham was also permitted over the company's objection to prove by a cotton buyer at Junction City that he (the cotton buyer) had sold and delivered fifty bales of cotton to the company at Junction City and that in a conversation over the insurance of this cotton, then being in a warehouse at Junction City, Lake told him that the cotton was covered with insurance as soon as it was sold to the company and that immediately after he bought cotton he reported the purchase and the company's insurance then covered it.

Over the company's objection Barham was also permitted to introduce and read in evidence sections 2552-2530, Louisiana Code, on the subject of sales of personal property, which reads as follows: "If after the contract and before the seller has been required to deliver the thing it ceases to be susceptible of delivery, without his fault, the buyer is still bound to pay the purchase price."

On behalf of the company liability was denied upon the ground that there had been no delivery, and Lake testified that there had been no delivery. This answer was stricken out on Barham's motion for the reason that the answer was the mere opinion of the witness. Thereupon the witness stated the custom under which he bought this cotton as follows: It was the seller's business to deliver the cotton f. o. b. cars and to obtain a bill of lading therefor subject to shipper's order, notify N. P. Sloan Company. The seller would deposit with his local bank a draft on the company at El Dorado for the purchase price of the cotton, with the bill of lading attached,...