Pekin Cooperage Co. v. Gibbs

• Decision Date: 26 October 1914
• Docket Number: 202
• Citation: 170 S.W. 574,114 Ark. 559
• Parties: PEKIN COOPERAGE COMPANY v. GIBBS
• Court: Arkansas Supreme Court

170 S.W. 574

114 Ark. 559

PEKIN COOPERAGE COMPANY v. GIBBS

No. 202

Supreme Court of Arkansas

October 26, 1914

Appeal from Clark Circuit Court; Jacob M. Carter, Judge; reversed.

STATEMENT BY THE COURT.

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 the existence of 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 co-plaintiff, 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 plaintiff's 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 plead 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 17, 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 enclosed. 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 enclosure 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 enclosed 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 17, 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 the 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 outturn of the car, and they understood this report was satisfactory, 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.

Judgment reversed and cause dismissed.

John H. Crawford, for appellant.

1. If Gibbs was the owner of the staves, the milling company was acting as the agent for an undisclosed principal who will be bound by its acts. 87 Ark. 438; 42 Ark. 97.

2. When appellees accepted the statement and check from appellant showing payment in full, it amounted to an accord and satisfaction of the demand sued on. 94 Ark. 158; 100 Ark. 251; 27 L. R. A. (N. S.) 439, note; 98 Ark. 269; 122 S.W. 771; 137 Mo.App. 472; 129 S.W. 138; 113 Mo.App. 612, 88 S.W. 128; 138 N.Y. 231, 20 L. R. A. 785; 31 L. R. A. 771; 161 Ill. 339, 43 N.E. 1089; 115 N.C. 120, 20 S.E. 208; 100 Mo.App. 599, 75 S.W. 178; 188 Mo. 611, 87 S.W. 981; 75 Ark. 354. See also 148 N.Y. 332; 145 Mo. 659; 66 N.W. 834; 166 Mo. 335; 83 O. St. 169, 32 L. R. A. (N. S.) 380.

3. If the staves belonged to Gibbs, and the milling company was acting as his agent, being in possession of the staves with authority to sell, it acted as a factor and not a broker, and when it effected a sale, it had the right to collect the purchase money. Black's Law Dict. 470; Id. 155; 19 Cyc. 116; Id. 136; Story on Agency, (5 ed), § 112; 46 Ark. 210, 214; 134 Ill. 188; 27 N.E. 89; 124 Ky. 435, 8 L. R. A. (N. S.) 474; 7 Mass. 319; 5 Am. Dec. 47, 49; 56 Mo. 434; 1 Car. Law Rep. 527, 6 Am. Dec. 555; 101 U.S. 181, 183; 10 Wall. 141.

4. Gibbs could not accept from the milling company the money covered in the check for $ 72.56, and afterward repudiate his factor's authority to accord and satisfy the disputed claim between himself and the cooperage company. 9 Wall. 76, 82; 96 U.S. 640; 1 Ruling Case Law, 181, § 9; 146 N.C. 191; 14 Ann. Cas. 211; 53 S.W. 512; 28 Ark. 59; 29 Ark. 99; Id. 131; 54 Ark. 216; 55 Ark. 112; 80 Ark. 65; 97 Ark. 589; 121 Ill. 25.

McMillan & McMillan, for appellees.

1. The evidence shows that the staves were in accord with the specifications of the contract. From the evidence the jury might have concluded that the alleged accord and satisfaction between the appellee, the milling company, and the cooperage company, was not binding on Gibbs because (1) Gibbs did not authorize it and did not ratify it, and (2) the alleged accord and satisfaction was obtained by fraud.

Under the circumstances of this case it was a question of fact for the jury as to whether there was an accord and satisfaction. It can not be said that the conditional nature of the tender appeared so clearly that a court could say that the acceptance of the check was an accord and satisfaction. Appellant selected the language and can not complain if it was not so clear that the milling company could not misunderstand that the check was tendered on condition that its acceptance was an accord and satisfaction. 84 Ark. 431; 90 Ark. 256; 107 S.W. 440.

An accord and satisfaction obtained by fraud is void. 83 Ark. 575; 87 Ark. 614; 1 Cyc. 340, note 15.

2. Gibbs did not ratify the settlement. The evidence shows that Gibbs refused to accept the credit and told Nowlin he would not accept it. His acts were not inconsistent with any other hypothesis than that of approval of the milling company's acts.

Ratification is a question of fact for the jury, under the circumstances. 99 Ark. 358; 90 Ark. 104-7.

OPINION

SMITH, J., (after stating the facts).

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 the 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...