Sherrill Hardwood Lumber Company v. H. D. Glass Lumber Company
| Decision Date | 30 January 1922 |
| Docket Number | 117 |
| Citation | 237 S.W. 425,151 Ark. 513 |
| Parties | SHERRILL HARDWOOD LUMBER COMPANY v. H. D. GLASS LUMBER COMPANY |
| Court | Arkansas Supreme Court |
Appeal from White Circuit Court; J. M. Jackson, Judge; reversed.
STATEMENT OF FACTS.
Appellee brought this action in replevin to recover from appellant two boilers of which it claims to be the owner.
Appellant answered, denying the ownership in appellee and averring title to the boilers in itself.
On the 26th day of November, 1919, appellant wrote to appellee enclosing a circular of second-hand machinery for sale together with a price list and stating that the machinery was all in good serviceable condition. Among the second-hand machinery listed for sale were two boilers priced at $ 500. Appellee telegraphed appellant that it would accept the two boilers for $ 500, and was sending a check for half of that amount. On January 5, 1920, appellee sent appellant a check for $ 250 to be applied on the purchase price of the two boilers. Appellant answered the letter, and stated that the boilers were listed at $ 500 each, and that it would hold the check for appellee.
According to the testimony of appellee, it not only sent to appellant a check for $ 250 in part payment of the boilers, but it also paid $ 425 storage charges to obtain the release of a claim of some one in actual possession of the boilers.
According to the testimony of appellant, the $ 250 was finally accepted by it as a payment on an entirely separate piece of machinery, and appellee so understood it. There never was any change of possession in the boilers or delivery of them to appellee.
Under the instructions of the court the jury returned a verdict for appellee, and from the judgment rendered appellant has duly prosecuted this appeal.
Judgment reversed, and cause remanded.
G E. Garner, for appellant.
A contract of sale consists of an agreement between the parties, and in addition thereto a delivery of the chattel. 91 Ark. 422. Here there was no agreement and no delivery, and replevin would not lie. His remedy would have been for breach of contract, had there been a sale and symbolic delivery.
The offer to pay one-half only of the price for the boilers, even as construed by appellee, was a departure from the terms of sale, and invalidates the offer. 97 Ark. 613, 134 S.W. 942.
There was no binding contract of sale, as the parties never agreed on the proposition. 95 Ark. 421.
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