Pekin Cooperage Co. v. Gibbs
| Decision Date | 26 October 1914 |
| Docket Number | (No. 202.) |
| Citation | 170 S.W. 574 |
| Parties | PEKIN COOPERAGE CO. v. GIBBS et al. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Clark County; Jacob M. Carter, Judge.
Action by C. D. Gibbs and another against the Pekin Cooperage Company. Judgment for plaintiffs, and defendant appeals. Reversed and dismissed.
Appellees, C. D. Gibbs and the Arkadelphia Milling Company, commenced suit on the 7th day of July, 1913, against the appellant, in which they alleged an indebtedness on account of white oak staves sold and delivered by them to the defendant of the value of $450. This complaint was amended by alleging that the milling company, which actually made the contract with the defendant for the sale of the staves sued for, sold them as agent for its coplaintiff, Gibbs, and that the milling company was acting as a broker for Gibbs and, as such broker, sold the staves to the defendant.
Appellant answered, and denied owing any indebtedness to the plaintiffs, and alleged the facts to be that on February 8, 1913, it purchased from the milling company a car of white oak wine staves, to be manufactured according to jointing instructions, to be primed, cleaned, and freshly planed on one side, or heavy enough to plane on top to thickness of full eleven-sixteenths of an inch, and that when said staves were delivered they were found not to have been manufactured according to the specifications, whereupon defendant proposed by wire to the milling company to handle and rejoint the staves at plaintiffs' expense and to settle for the staves when this service had been performed, and that the milling company accepted this offer, and that agreement was carried into effect; that on March 24, 1913, appellant mailed to the milling company a statement of a balance due, showing that amount to be $72.56, and this letter advised that "check herewith in full settlement"; that the check referred to was received in full payment, was cashed by the milling company, and the same was in full payment for the car of staves sued for, and was, in effect, an accord and satisfaction of the demand sued on in this action; that appellant, in purchasing the staves from the milling company, did not know of its agency, but dealt with it as the owner, and denied that it was, in fact, the mere agent or broker of appellee Gibbs, and it pleaded this settlement in bar of the plaintiffs' cause of action.
At the trial there was a conflict in the evidence concerning the condition of the staves at the time of their receipt by appellant; but there was evidence from which the jury might have found, as it did find, that the staves had been manufactured in accordance with the specifications, and that appellant consequently should have paid a larger sum than it did pay in the check accompanying the letter advising that the check was tendered in full satisfaction of appellees' demand. A sharp conflict had arisen between the parties concerning the rejointing of these staves, and in a letter dated March 17th written to the milling company by the appellant cooperage company, that company sharply defined its position, and later, on the 24th of the same month, wrote the letter above mentioned, in which the check was inclosed. The milling company promptly acknowledged the receipt of the check, and advised the cooperage company that it had been received and credited on the account, and the milling company also immediately advised appellee Gibbs, who had manufactured the staves, of what had been done; this information being communicated by the inclosure of the cooperage company's letter in which the account was stated as it understood it to be and the statement made that the check was inclosed in full satisfaction of all demands growing out of it. Gibbs promptly advised the milling company that he would not accept this settlement, and insisted that the rejointing charges were not correct, but he did not direct the milling company to return this check, nor was any tender of that money ever made. The milling company cashed the check and credited the proceeds thereof on their books to the account of Gibbs, about which action no complaint was made, except that the check should not have been received in full satisfaction of the claim.
Appellees insist that there was no accord and satisfaction in this case, for the reason that Gibbs promptly declined to accept the check in satisfaction of his demand, and for the further reason that a misrepresentation was made to the milling company by the cooperage company which induced the first-named company to accept the check. In the letter above referred to, of date March 17th, the manager of the cooperage company wrote to the milling company that one Bishop, acting for Gibbs, had examined the staves and expressed himself as entirely satisfied with the loss occasioned by rejointing, and had explained why this service was necessary by saying that, instead of jointing the staves according to the specifications, the car had been loaded and shipped without regard to the specifications, and that Bishop had been furnished a full report as to the actual out-turn of the car, and they understood this report was satisfactory to him; whereas appellees say the facts were that the jointing had been done in accordance with specifications, and Bishop had not assented to the contrary statement.
Numerous instructions were requested, of which a number were given, but we do not set them out, as our views of the law of this case are expressed in the opinion.
There was a verdict and judgment for appellees for the full amount sued for, and this appeal has been duly prosecuted.
John H. Crawford, of Arkadelphia, for appellant. McMillan & McMillan, of Arkadelphia, for appellees.
SMITH, J. (after stating the facts as above).
As has been stated, the proof was sufficient to support the jury's finding that the staves had not been manufactured in accordance with the specifications; and we also think the proof was sufficient to support a finding upon the part of the jury that the appellant company was advised, before mailing the check to the appellee milling company, that that company was not the owner of the staves, but had shipped them for the owner; but it is not insisted that the milling company had no authority to assent to the appellant's proposition about rejointing the staves, and, in fact, we think the proof abundantly sufficient to show that such authority existed had that question been raised. But appellees say this service was not performed as charged for, and that in this rejointing a great many good staves were thrown aside as culls, and the verdict of the jury sustains them in this contention, and their recovery would be sustained but for the evidence in regard to the accord and satisfaction.
There is no question but that the check, payable to the order of the milling company, was tendered in full satisfaction of this demand, as the letter accompanying it unequivocally states the fact so to be, and the correspondence between the parties shows that it was so intended. The law in such cases was announced in the case of Barham v. Bank of Delight, 94 Ark. 158, 126 S. W. 394, 27 L. R. A. (N. S.) 439, where the court said:
To the same effect see Cunningham v. Rauch-Darrach Grain Co., 98 Ark. 273, 135 S. W. 831, and Barham v. Kizzia, 100 Ark. 252, 140 S. W. 6.
It is insisted, however, that there is no accord and satisfaction here, for the reason that the appellee milling company was induced to accept the check by the statement contained in the letter before referred to that Gibbs' representative was satisfied with the action appellant had taken in regard to rejointing the staves, and, notwithstanding appellant's contention that such was the fact, the verdict of the jury is conclusive that such action was not, in fact, satisfactory. However, it is undisputed that Gibbs did not direct the milling company to return this check, or its proceeds, and no such tender has ever been made. Upon the contrary, the appellees contend...
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