Sealy Mattress Co. v. Southern Cotton Oil Co.

• Decision Date: 16 February 1925
• Docket Number: 169
• Citation: 268 S.W. 611,167 Ark. 405
• Parties: SEALY MATTRESS COMPANY v. SOUTHERN COTTON OIL COMPANY
• Court: Arkansas Supreme Court

268 S.W. 611

167 Ark. 405

SEALY MATTRESS COMPANY v. SOUTHERN COTTON OIL COMPANY

No. 169

Supreme Court of Arkansas

February 16, 1925

Appeal from Pulaski Circuit Court, Third Division; Marvin Harris Judge; affirmed.

Judgment affirmed.

Owens & Ehrman, for appellant.

The burden of proof is met by a preponderance of the evidence or a fair preponderance "thereof" and it was reversible error to charge the jury that appellant must prove its case by a clear preponderance of the evidence. 37 Ark 580; 32 Ark. 523; 115 Ark. 406; 100 Pa. 580. It was only necessary for appellant to prove by a preponderance of the evidence that a contract was entered into, that a part of the goods were accepted and received, and that appellee had breached the contract. C. & M. Dig. § 4864. The requirement for clear and positive proof applies only to causes in equity where relief is sought contrary to the provisions of the 4th section of the statute of Frauds and § 4862 of C. & M. Digest. 163 Ark. 49, 61; 136 Ark. 96.

Rose Hemingway, Cantrell & Loughborough, for appellee.

We do not contend that any such strong degree of proof is necessary to establish a parol contract under the 17th section of the Statute of Frauds as is required under the 4th section. Before exceptions to the writing required by the fourth section can be established they must be proved by a weight of evidence "leaving no room for reasonable doubt;" particularly where the aid of equity is sought to enforce a parol contract. 209 Mo. 552; 108 S.W. 89; 1 Ark. 391; 4 Wall. 513. Conjecture and speculation cannot supply the place of proof. 113 Ark. 353; 117 Ark. 638. There is no merit in the contention that appellant did not have a fair trial because the court used the term "clear" in speaking of the preponderance of the evidence. Century Dict., "clear," 62 Cal. 377, 384; 11 Colo.App. 515; 53 P. 620, 621; 57 N.W. 836, 838; 77 Ark. 128, 135. See also 125 Ark. 576; 126 Ark. 50; 99 Ark. 133; Id 356; 90 Ark. 43; 120 Ark. 118; 121 Ark. 529.

OPINION

MCCULLOCH, C. J.

This litigation arose over an alleged contract between appellant and appellee for the purchase and sale of a product called cotton linters, which is the lint taken from cotton seed. Appellee sued appellant to recover the sum of $ 565.20 on account for the price of twenty-one bales of linters, and appellant brought another action against appellee to recover damages for alleged violation of a contract for the sale of 600 bales of linters. The complaint in each case was answered, and the two suits were consolidated and tried together, resulting in a verdict in favor of appellee for the sum of $ 420.

Appellee is operating a cotton-oil mill near the city of Little Rock, and the first process of manufacturing cotton-seed oil and the by-products is to remove the remainder of the lint left on the seed after ginning. The product thus removed is called linters, and, by the process used by appellee, there are two grades of linters, called the first cut and second cut, the latter being shorter and of less value.

Appellant is engaged in the manufacture of cotton mattresses, and uses cotton linters in large quantities for that purpose. The plants lie close together, and the alleged contract was made by the respective managers, Mr. Hunt for appellee and Mr. Ortmeyer for appellant. Negotiations began for the purchase by appellant from appellee of 600 bales of linters, and twenty-one bales were delivered by appellee to appellant. There is a sharp and irreconcilable conflict in the testimony as to the details and price, but it is conceded that the tentative agreement made between the two managers was to be reduced to writing after the approval of the general manager at appellee's principal office in Memphis, Tennessee, was received.

The testimony adduced by appellee was to the effect that the price of linters was to be six cents a pound. Appellee's manager so testified, and he was corroborated by other witnesses. On the other hand, appellant's manager testified that, according to the terms of the contract, he was to have 200 bales of first cut at four cents a pound, and 400 bales of second cut at two cents a pound. Appellee's witnesses testified that the twenty-one bales of linters were delivered to appellant merely as a loan, to be returned or paid for, whereas appellant's witnesses testified that the twenty-one bales of linters were delivered on the contract. These bales were delivered before the confirmation of the Memphis manager was received and the contract reduced to writing. At this point of the proceedings appellee's manager caused the contract to be reduced to writing, showing the sale of 600 bales of linters at six cents a pound, and appellant's manager refused to sign the contract on the ground that it was not in accordance with the oral agreement. The contention of appellant is that there was an oral agreement and part performance by the delivery of twenty-one bales of linters. Appellee contends that there was no contract, for the reason that appellant refused to sign the contract as tentatively agreed upon, and that the delivery of the twenty-one bales was merely a loan.

There was evidence legally sufficient to support a finding by the jury either way on the issues presented, and we must treat the verdict as conclusive, unless error be found in the instructions. There is no contention of error in any respect save in giving and refusing instructions.

Error is assigned in giving the fourth instruction, which told the jury that the burden of proof was on appellant to establish its case "clearly by a preponderance of the evidence," and in modifying appellant's second instruction by adding the words, "unless the mattress company has failed to show, by a clear preponderance of the evidence, that the...