Planters Fertilizer & Chemical Co. v. Columbia Cotton Oil Co.

• Decision Date: 30 October 1916
• Docket Number: 229
• Citation: 189 S.W. 166,126 Ark. 19
• Parties: PLANTERS FERTILIZER & CHEMICAL COMPANY v. COLUMBIA COTTON OIL COMPANY
• Court: Arkansas Supreme Court

189 S.W. 166

126 Ark. 19

PLANTERS FERTILIZER & CHEMICAL COMPANY v. COLUMBIA COTTON OIL COMPANY

No. 229

Supreme Court of Arkansas

October 30, 1916

Appeal from Columbia Circuit Court; C. W. Smith, Judge; reversed.

Judgment reversed and cause remanded.

Stevens & Stevens, for appellant.

In construing a contract executed on a printed form, if there are printed and written words in the contract differing in meaning, the written words will control. Bishop on Contracts § 413; Lawson on Contracts, § 389; 9 Cyc., § 584; 11 Cent. Dig., tit. Contracts, 745; 112 S.W. 332.

"Where there are two clauses of a contract in any respect conflicting, 'that which is specially directed to a particular matter controls in respect thereto.'" 72 Ark. 633. See, also, 107 S.W. 282, 283. The erasure appearing in the contract sued on is explained by the witness Turner as not having been made on the copy introduced in evidence because of the short carbon, and clearly establishes the contract sued on as the original, which is the best evidence. 79 Ark. 475. Before this copy could be in evidence, it should have been shown to be in fact a copy. 17 Cyc. 517-18. The failure of the defendant to produce any evidence to show a change in the contract after it was signed, left no facts to be settled by the jury, and the court should have directed a verdict. 69 Ark. 562, 568; 104 Ark. 267; 89 Ark. 239.

Rose Hemingway, Cantrell, Loughborough & Miles, for appellant.

It is for the court to construe a written contract. 101 Ark. 469; 105 Ark. 213; 89 Ark. 239; 78 Ark. 574-577. By the terms of the contract, as the blanks were filled in writing, the parties agreed on a price of $ 8.25 per ton, f. o. b. cars at seller's factory, New Orleans. By this agreement the defendant was bound for the freight charges, becoming the owner of the goods when delivered at the place stipulated. Where there are two repugnant provisions in a contract, the first will control. 120 Ark. 121. Where a contract is made up on a printed form, and blanks are filled out in writing, in construing the contract, the written part controls. 38 N.E 907; 4 So. 197-199; 83 N.Y. 518-523; 60 N.W. 844, 845; 108 P. 952.

C. W. McKay, for appellee.

It appears from the contract or order that it was made subject to approval of appellant at New Orleans, and the evidence shows that it was given to its agent at Magnolia, and forwarded to New Orleans for appellant's signature and approval. It was a mere proposal to buy, and, until accepted by the seller, not binding. The acceptance must be identical with the terms of the order to render it binding. 74 Ark. 16; 76 Ark. 371; 86 Ark. 27; 13 Cyc. 52, 53; 96 Ark. 606; 98 Ark. 81; 110 Ark. 123.

If it be conceded that the clause stipulating that the second party should pay the freight, the amount thereof to be deducted from the purchase price in settlement, was erased from the original, etc., still, the copy returned to appellee containing that clause is the contract that is binding upon the parties. If an acceptance on the part of the seller is necessary to bind the buyer, then the contract as accepted in this instance is the one returned to the buyer.

There is no contradiction between the clauses in dispute as to the payment of freight. F. o. b. cars at seller's factory, New Orleans, means free on board cars at that point and nothing else. It would mean also that that was the point of delivery, the buyer to pay the freight thence to destination, if it were not for this further clause which requires him to pay the freight, but, having done so, it authorizes him to deduct it from the stipulated price in settlement therefor.

Appellant placed the two clauses in the contract itself. A contract will be construed most strongly against the party who drafted it. 73 Ark. 338; 74 Ark. 41; 84 Ark. 431; 90 Ark. 88; 87 Ark. 522; 105 Ark. 518; 112 Ark. 1; 171 S.W. 136.

OPINION

HART, J.

The Planters Fertilizer & Chemical Company sued the Columbia Cotton Oil Company et al. to recover $ 2,813.36, which it alleges was the balance due it for 1,250 tons of acid phosphate sold by defendant to the oil company. The material facts are as follows:

The Planters Fertilizer & Chemical Company is a corporation organized in the State of Louisiana. It is located at New Orleans and is engaged in the business of selling fertilizers. The Columbia Cotton Oil Company is a corporation organized under the laws of the State of Arkansas, engaged in business in Magnolia, Arkansas. On the 30th day of July, 1914, the two corporations entered into a written contract, whereby the former agreed to sell the latter 1,250 tons of acid phosphate. The contract was drawn up on a printed form of the selling company which was represented by its vice president and manager, W. E. Turner. The purchaser was represented by J. W. Bird, its manager. That part of the contract which is necessary for a determination of the issues raised by the appeal is as follows:

"Witnesseth: That the party of the first part hereby sells to the party of the second part and the second party hereby purchases from the said first party the amount of fertilizer named below at the prices set opposite the respective brands per ton, in car lots, f. o. b. cars at seller's factory, New Orleans, La.

"Quantity--1,250 tons acid phosphate. Brand--16% avail. Price--$ 8.25 per ton. Size of bags, . . . . pounds.

"Second party agrees to pay freight, amount of such freight to be deducted from above prices in settlement. Shipments to be made in car lots."

The words, "Seller's Factory, New Orleans, La., 1,250 tons acid phosphate, 16% avail. $ 8.25," were written in the contract with an indelible pencil. The contract was executed in triplicate. The copy retained by the selling corporation had a pencil mark through all that part of the contract quoted above which begins with, "Second party agrees to pay freight," etc. The copy of the contract sent to the purchaser did not have the pencil mark run through this part of the contract, which was in printing in all the copies.

W. E Turner testified substantially as follows: I am vice president and manager of the plaintiff corporation and made the contract with the defendant corporation. The contract was executed at Magnolia, Arkansas, July 30, 1914, by J. W. Bird, for the Cotton Oil Company, and by myself for my own company. I filled out the contract with an indelible pencil, and then handed the pencil to Mr. Bird for him to sign the contract for his corporation. I noticed that the printed part, "Second party agrees to pay freight, amount of such freight to be deducted from above prices in settlement. Shipments to be made in car lots," had not been marked out of the contract, and I picked up an ordinary lead pencil and marked it out. The reason I did not mark it out with the indelible pencil was because I had handed it to Mr. Bird to sign the contract. The contract was signed in triplicate. I had to slip the carbon down for Mr. Bird to sign the contract, and in doing so, it went down below the words marked out in the copy held by my company, and...