Pratt v. Meyer

• Decision Date: 29 April 1905
• Citation: 87 S.W. 123,75 Ark. 206
• Parties: PRATT v. MEYER
• Court: Arkansas Supreme Court

87 S.W. 123

75 Ark. 206

PRATT v. MEYER

Supreme Court of Arkansas

April 29, 1905

Appeal from Craighead Circuit Court, Jonesboro District HANCE N HUTTON, Judge, on exchange of circuits.

Reversed.

Reversed and remanded.

Frierson & Frierson, for appellants.

The representations of the salesman were not fraudulent, and did not entitle Meyer to rescind the contract. 14 Am. & Eng. Enc. Law, 34, 118; 1 Ark. 31; 2 Mech. Sales. § 870; 38 Ark 351; 6 Ark. 513; 7 Ark. 167; 11 Ark. 58; 19 Ark. 522; 27 Ark 244; 47 Ark. 165; 38 Ark. 342; 26 Ark. 28; 31 Ark. 170; 22 Ark. 459; 23 Ark. 289; 14 Am. & Eng. Enc. Law, 85; 98 N.W. 923. The salesman had no authority to promise Meyer a monopoly, and Meyer had notice of his lack of authority. 48 Ark. 138; Mech. Ag. § 289; 1 Am. & Eng. Enc. Law, 987, 1016; 37 L. R. A. 598. Meyer accepted the goods, and lost any right to rescind. 14 Am. & Eng. Enc. Law, 159; 2 Mech. Sales, §§ 942, 1380, 1387, 1392; 84 S.W. 557; 15 N.E. 608; 53 N.W. 1047; 43 N.W. 927; 84 Mich. 533; 43 Minn. 23; 45 Minn. 190; 133 N.Y. 140; 63 Ark. 331. The testimony of appellee's witnesses was incompetent. Bradner, Ev. 523; 12 Enc. Pl. & Pr. 424; 2 Jones, Ev. 361; 1 Greenleaf, Ev. § 52; 1 Jones, Ev. § 140.

OPINION

BATTLE, J.

Walter Pratt & Company brought an action against Max Meyer, before a justice of the peace of Craighead County, for $ 133.38, upon a written contract by which the plaintiffs agreed to sell and deliver to the defendant a bill of perfumes, soaps and toilet articles. In the justice's court plaintiffs recovered judgment. Meyer appealed, and the trial in the circuit court resulted in a verdict for defendant. Plaintiffs appealed. The order for the goods, signed by Meyer and by the salesman of the appellant on February 12, 1902, is as follows:

"Jonesboro, Ark., February 12, 1902.

"Walter Pratt & Company, Chicago, Ill.:

"Gentlemen--Please ship us, care Burlington, Cedar Rapids & Northern Railway, the assortment of goods listed above, like sample shown us by your salesman, at the prices specified, and in accordance with all the terms above specified, which we have carefully read and find to be complete and satisfactory. We have no agreement or understanding with salesman except as printed or written on this order. Receipt of duplicate of this order from your salesman is hereby acknowledged.

[Signed.]

"Max Meyer,

"Walter Pratt & Company,

"By M. Sankey, Salesman."

A further provision of the contract was "separate, verbal or written agreements with salesmen are not binding on Walter Pratt & Company. All conditions of sale must be shown on this order."

The only warranty in the written contract is as follows: "Warranty. All goods are warranted to be same in quality, material and in all other respects as samples shown by salesman. The purchaser agrees to examine and inspect the goods at once upon their arrival at destination; and if said goods fail to comply with said warranty, he shall, within five days from date of arrival at destination, give detailed written notice of such failure by registered letter to Walter Pratt & Company, Chicago, Ill.; otherwise, all warranty of said goods is waived." The goods were delivered to Meyer before April 9, 1902. No written notice, by registered mail or otherwise, was received by appellants, within five days after the arrival of the goods, of the claim that the goods failed to conform to sample.

One witness, in behalf of appellants, testified, in substance, as follows: "That the goods sold and delivered Meyer were of the exact quality called for in the contract of sale. That witness filled the requisition from the shipping department from the general stock of Walter Pratt & Company; that the salesman, Sankey, was provided with a full line of samples of the goods named in the contract, of identically the same kind as were shipped Meyer; that the quality of the goods could be determined by an examination of the samples, and any defects could have been discovered by examining the samples; that the goods sold Meyer were manufactured and were handled by the plaintiff as merchants, a large stock being kept on hand, and replenished from time to time by the manufacturing department. The goods were in stock when sold to Meyer. A business man ought to be able to check up and ascertain in a few hours and to determine whether or not the goods complied with the contract in quantity and quality, and a day or two would be a reasonable time for an ordinary intelligent business man to ascertain whether or not the goods were merchantable and reasonably fit for the purpose for which they were sold. Ordinarily, such an examination would be made in a few hours. There were no defects in the goods which could not have been determined by examination of the samples."

Appellee testified over objection, of appellants as follows: "The agent who sold the goods to him told him that it was the custom of his house to sell only one party in such a town as Jonesboro; and that, if he would buy the bill of goods, he would not sell to any one else in Jonesboro." He further testified: "That the goods came, and he checked them over as to the number of packages. That he sold a number of the bottles of perfume, and that all parties to whom he sold brought the bottles back, with the statement that the odors were not lasting; that he discovered that G. W. Culberhouse & Company, of Jonesboro, had purchased a bill of the same goods from the same salesman. That in his opinion the goods shipped to him were not equal in quality to the samples shown him by the salesman."

Other evidence was adduced by both parties.

The court instructed the jury, in part, over the objections of the appellant, as follows: "One of the defenses to the contract is that the plaintiff agreed with the defendant that he...