Read's Drug Store v. Hessig-Ellis Drug Co.

• Court: Arkansas Supreme Court
• Writing for the Court: HART, J.
• Citation: Read's Drug Store v. Hessig-Ellis Drug Co., 125 S.W. 434, 93 Ark. 497 (Ark. 1910)
• Decision Date: 31 January 1910
• Parties: READ'S DRUG STORE v. HESSIG-ELLIS DRUG COMPANY

125 S.W. 434

93 Ark. 497

READ'S DRUG STORE v. HESSIG-ELLIS DRUG COMPANY

Supreme Court of Arkansas

January 31, 1910

Appeal from Pulaski Circuit Court, First Division; Robert J. Lea Judge; reversed.

Judgment reversed and cause remanded.

Rose Hemingway, Cantrell & Loughborough, for appellant.

1. It was error to refuse defendant the right to open and close the argument. The burden of proof, under the pleadings, was on defendant. 32 Ark. 597; 13 Ark. 479; 29 Ark. 153; 82 Ark 331.

2. The testimony of Brown as to the conversations and propositions had, etc., was inadmissible. They were made prior to the final agreement. Where a contract is reduced to writing, parol evidence is admissible to vary, alter or explain it.

3. A tender does not have to be made where a party is advised beforehand that if made it will not be accepted. 68 Ark. 521.

M. C. Hutton and Campbell & Stevenson, for appellee.

1. Plaintiff was entitled to open and close. Kirby's Digest, §§ 3106, 3107-6196.

2. There was no error in allowing the witness Brown and others to testify as to conversations, etc., with Read. The contract was a verbal one. L. R. 4 App. Cas. 311.

OPINION

HART, J.

On the 12th day of January, 1909, the Hessig-Ellis Drug Company brought suit in the Pulaski Circuit Court against Read's Drug Store for $ 580.56 for goods sold on account. Both parties to the suit are corporations.

The defendant admitted the purchase of the goods, but denied that it was indebted to the plaintiff in said sum or in any other sum whatever. It pleaded:

First. That it had entered into a written contract with the plaintiff on the 18th day of December, 1907, whereby it purchased $ 672 worth of Muco-Solvent, and that it was provided in said contract, among other things, that defendant should have the right to return to plaintiff all Muco-Solvent which it might have on hand twelve months after the delivery of said Muco-Solvent to defendant, at the invoice price thereof; and that it had on hand and unsold $ 623.67 worth of said Muco-Solvent. That it had tendered said goods to plaintiff, but plaintiff had refused to accept or receive the same and repay the defendant the invoice price therefor; and that plaintiff was therefore indebted to defendant on said Muco-Solvent contract in the said sum of $ 623.67.

Second. That at the time defendant purchased the bill of staple goods, towit, on May 1, 1908, it was agreed between plaintiff and defendant that plaintiff should carry defendant's account for staple goods to the amount of the Muco-Solvent purchased until the time matured when defendant could return said Muco-Solvent and receive back the purchase price therefor, and that defendant should have credit on the bill for staple goods by the amount of Muco-Solvent which it had on hand.

The facts are as follows:

The Hessig-Ellis Drug Company, by a written contract, sold to Read's Drug Store a certain quantity of a medical preparation known to the trade as Muco-Solvent. The goods were delivered on January 12, 1908. The contract contained a provision that the Hessig-Ellis Drug Company should take back all goods unsold remaining in the hands of Read's Drug Store at the expiration of the Arkansas advertising contracts. It also contained another clause whereby the Hessig-Ellis Drug Company agreed to do a certain amount of advertising in the Arkansas Gazette or Arkansas Democrat, or both, papers published in the city of Little Rock, where Read's Drug Store carried on its business. The advertising was to be done during the twelve months following the date of the delivery of the goods to Read's Drug Store. By the terms of the contract, the Muco-Solvent was to be paid for in 30, 60, 90 and 120 days from the date of the contract.

A. C. Read, who owned a controlling interest in the stock of Read's Drug Store, says that "we put the Muco-Solvent on sale in four drug stores in the city of Little Rock, and tried to push the sale of it, but found it to be unsalable. Read's Drug Store paid for the Muco-Solvent according to the terms of the contract; but complained to the Hessig-Ellis Drug Company that the preparation was worthless and could not be sold. Mr. A. C. Read notified the Hessig-Ellis Drug Company that he expected to return the goods unsold at the expiration of the year and get back their purchase price. The Hessig-Ellis Drug Company replied that they had other contracts in the State of Arkansas, and claimed that, as long as they were in force, and advertising was done in the State of Arkansas, Read's Drug Store had no right to return the goods. Mr. A. C. Read continued to claim that he had a right to return the unsold goods at the expiration of the time for advertising under the terms of the contract above referred to. Read also continued to complain that he could not sell the goods, and on that account would be out the use of the purchase price of the goods until the end of the year, the date of the expiration of the advertising contracts provided by his contract. A. C. Read proposed to A. M. Brown, a salesman of the Hessig-Ellis Drug Company, that he would buy about $ 3,000 of staple goods from his company provided that company would carry about $ 675, the amount paid for the Muco-Solvent, until the Muco-Solvent transaction was settled. Brown did not think any amount should be specified, as he hoped to make Read's Drug Store a regular and permanent customer of his house for staple drugs. Brown made a proposition to Read, which is embodied in the following letter:

"Little Rock, May 16, 1908.

"Hessig-Ellis Drug Company, Memphis, Tenn.

"Dear Sirs: Regarding our proposed negotiations with Mr. A. C Read, this city, beg to advise that I have made Mr. Read the following proposition: The amount of business to be given us by him I deem it, however, expedient to leave out. 'In consideration of his business, or that part of it which we can handle, we agree to carry his account on our books for the amount of his purchase of Muco-Solvent until such time as the Muco-Solvent has been disposed of to his satisfaction.' Mr. Read assures us of quite a good deal of business, but I did not consider it good policy to state the amount required, as he would be much more liable to continue his business with us under other circumstances. I wish you would either write me or Mr. Read a confirmation of this agreement and greatly oblige,

"Yours truly,

"A M....