Royal Roofing Company v. Goss

• Decision Date: 08 February 1926
• Docket Number: 159
• Citation: 280 S.W. 1,170 Ark. 398
• Parties: ROYAL ROOFING COMPANY v. GOSS
• Court: Arkansas Supreme Court

280 S.W. 1

170 Ark. 398

ROYAL ROOFING COMPANY v. GOSS

No. 159

Supreme Court of Arkansas

February 8, 1926

Appeal from Polk Circuit Court; B. E. Isbell, Judge; reversed.

STATEMENT BY THE COURT.

The Royal Roofing Company sued J. B. Goss before a justice of the peace to recover $ 88.50, a balance due for roofing. There was a judgment for the defendant in the justice court, and the plaintiff appealed to the circuit court.

The Royal Roofing Company is a corporation engaged in selling roofing at wholesale at St. Louis, Mo., and B. M. Schulein is its treasurer. According to his testimony, while at Fort Smith, Ark., in the early part of September, 1922, he called J. B. Goss over the telephone at his store in Mena, Ark., and solicited from him an order for roofing. He quoted prices to Goss and told him that the freight would be f. o. b. St Louis, but that he would allow 20 cents per cwt. on the freight. While they were discussing the freight, they were disconnected, and the witness was unable to get reconnected with Goss. On his return to St. Louis, he mailed to Goss an invoice of the roofing in accordance with his quotation to Goss, and in the lower left-hand corner of the invoice was a notation of the number of pounds of the freight, together with an allowance of 20 cts. per cwt. on it. This invoice was mailed out on the 8th day of September, 1922, from St. Louis and in due course of mail should have reached Goss at Mena Ark., on the next day. The roofing was received a week or ten days later. In January, 1923, the plaintiff received a letter from Goss inclosing a check for the price of the roofing as per invoice, and a deduction in the amount of freight from St. Louis to Fort Smith, Ark. Goss claimed that the contract was that he was to be charged with freight only from Fort Smith to Mena, and that this was in accordance with their previous dealings. The plaintiff answered this letter claiming that the roofing was sold f. o. b. St. Louis, Mo and that it had only agreed to allow 20 cts. per cwt. on the freight.

According to the testimony of J. B. Goss, he accepted the price of the roofing quoted over the telephone from Fort Smith by B. M. Schulein for the plaintiff, but told him that he would not accept the offer of 20 cts. a cwt. freight allowance. Goss reminded him that he had been buying goods from the plaintiff as if they were shipped f. o. b. Fort Smith, Ark. Schulein told him that the 20 cts. per cwt. allowance f. o. b. St. Louis would not make much difference. Goss told Schulein that he would not accept the goods in that way, and Schulein hung up the receiver. Goss thought that he was mad, and hung up the receiver himself. He admitted getting the invoice in due course of mail, and paid the freight when the goods arrived eight or ten days later. He had been trading with the plaintiff for several years, and it was their custom for him to pay all the freight, and when the goods were paid for he would receive a credit on the freight from St. Louis to Fort Smith. In other words, he would pay for the goods as if they were shipped to him f. o. b. Fort Smith, instead of St. Louis. On this account he did not notice the notation on the invoice that he was only to be allowed 20 cts. per cwt. on this shipment.

The jury returned a verdict in favor of the defendant, and from the judgment rendered the plaintiff has duly prosecuted an appeal to this court.

Judgment reversed, and cause remanded.

Pipkin & Frederick, for appellant.

Norwood & Alley, for appellee.

OPINION

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

Counsel for the plaintiff rely for a reversal of the judgment on the ground that the court erred in refusing to direct a verdict in its favor. In this contention we think counsel are correct. According to the defendant's own testimony, no contract for the purchase and sale of the roofing was made over the telephone because they were disconnected while they were negotiating about the allowance to be given the defendant on the freight. On the one hand, the plaintiff was insisting on the defendant taking the goods f. o. b. St Louis, Mo., with an allowance of 20 cts. per cwt. on the freight. On the other hand, the defendant was insisting on the freight allowance as if the goods were shipped to him...