Tiger Bros. & Levine Mercantile Company v. Griffin
| Decision Date | 09 October 1922 |
| Docket Number | 175 |
| Citation | 244 S.W. 8,155 Ark. 121 |
| Parties | TIGER BROS. & LEVINE MERCANTILE COMPANY v. GRIFFIN |
| Court | Arkansas Supreme Court |
Appeal from Mississippi Chancery Court, Chickasawba District; Archer Wheatley, Chancellor; affirmed.
Decree affirmed.
Cooley & Adams, for appellants.
1. The agreement for sale of the cotton at Manila was induced by such fraudulent representations on the part of appellee as to entitle appellant to refuse to perform. 26 Ark. 28; 71 Id. 305, 309; 73 Id. 542, 547; 95 Id. 131, 136; 104 Id. 388, 396; 123 Id. 492; Crawford's Digest, vol. 3, title Fraud.
Levine's statement to plaintiff, where the latter pointed out the samples to him, that he did not want to see them because he could not tell anything about them after looking at them, was an express declaration of his own lack of knowledge and experience, and of his dependence upon and confiding in the knowledge of the plaintiff. 38 Ark. 334, 340; 99 Id. 438, 442; 20 Cyc. 60.
2. The agreement was within the statute of frauds, and not enforceable. C. & M. Digest, § 4864; 20 Cyc. 238; 35 Cyc. 298; 39 Ark. 571; 25 R. C. L. 634, § 258; 35 Cyc 117; 25 R. C. L. 607, § 215; Williston on Contracts vol. 1, § 561; 4 A. L. R. 908; 23 R. C. L. 1346-7 § 170; 145 Ark. 475; 36 S.C. 69, 15 S.E. 344; 4 A. L. R. 914.
3. The damages assessed by the court are excessive. The vendee, when entitled to recover, may recover only the difference between the contract price and the market price of cotton of the same grade as that called for in the contract, on the day it is ascertained that the vendee will not perform. 79 Ark. 338, 344; 117 Id. 442; 35 Cyc. 633. In this case appellee had positive notice on August 31st that the cotton would not be delivered.
C. A. Cunningham, for appellee.
1. As to the question whether or not the sale of the cotton by appellants was one transaction or two, the testimony is in irreconcilable conflict, and the chancellor's finding therefore ought not to be disturbed, unless there is a clear preponderance against it. 79 Ark. 338; 134 Id. 284; 48 A. 107; 80 Am. St. Rep. 410; 53 A. 782; 96 Am. St. Rep. 211, 220.
2. The burden of proof was on the appellants to show fraud. 143 Ark. 580, 590. It is a firmly established principle that if the means of information are alike accessible to both, so that with ordinary prudence or vigilance the parties might respectively rely upon their own judgment, they must be presumed to have done so; or, if they have not so informed themselves, must abide the consequences of their own inattention and carelessness. 11 Ark. 58; 19 Id. 522; 47 Id. 48; 71 Id. 91; 83 Id. 403; 87 Id. 570; 95 Id. 131; Id. 154; Id. 375; Id. 527; 101 Id. 608; 112 Id. 498; 113 Id. 81; 119 Id. 100; 129 Id. 508; 143 Id. 592.
OPINION
Appellant is a domestic corporation, engaged in the general mercantile business at Manila, a town in Mississippi County, and as an incident to its business it buys cotton from its customers.
On August 25, 1921, appellant owned 104 bales of cotton, situated in its warehouse at Manila, and on that day it entered into an oral contract with appellee for the sale of said cotton at ten cents per pound, payable at the Blytheville Compress at Blytheville, Arkanasas. Appellee was a cotton buyer, with an office at Blytheville. Appellant delivered the cotton to the warehouse at Blytheville and received warehouse receipts, but refused to make delivery to appellee in consummation of the sale, and appellee instituted the present action in the chancery court of Mississippi County, setting forth in its complaint the oral agreement for the sale of the cotton and the breach thereof and alleging that appellant was insolvent. The prayer of the complaint was either for specific performance of the contract or for the recovery of damages for breach of the contract.
In the complaint it was alleged that there was a sale of 154 bales of cotton in all, fifty bales of which were situated at Blytheville, in a warehouse, which were delivered and paid for in part performance of the contract.
Appellee secured in the action a temporary injunction restraining appellant from disposing of the cotton, and also caused an order of specific attachment to be issued and levied on the cotton. Subsequently, appellant gave bond in discharge of the specific attachment, and there was an agreement that the case should proceed to trial in the chancery court. The trial in that court resulted in a decree in favor of appellee and against appellant for the recovery of $ 3,337.68, the difference found by the court between the contract price of the cotton and the market value thereof on the day on which appellant was shown to have broken the contract.
Appellant, in its answer, pleaded the statute of frauds as a defense, and also alleged, by way of defense, that appellee had falsely and fraudulently misrepresented to appellant's agent the grades of the cotton, and that appellant was induced by such representations to enter into the contract.
It is undisputed that appellant entered into an oral agreement with appellee for the sale and delivery of the 104 bales of cotton which are the subject-matter of the controversy, and that appellant thereafter refused to consummate the sale, but the first and principal point in the controversy between the parties is whether or not the contract was within the statute of frauds.
At the time the agreement was entered into between the parties, appellant owned fifty bales of cotton, which were stored in a warehouse in Blytheville, and also owned 104 bales of cotton, stored in its own warehouse at Manila--at least the 104 bales were in appellant's possession, some of it being cotton owned by appellant's customers, but appellant had authority to sell it.
A few days before the contract was entered into between the parties, appellee went out to Manila on a visit to appellant's store, and approached the manager, Mr. Ike Levine, on the subject of purchasing the cotton. After appellee was informed that appellant desired to sell the cotton, appellee and one of appellant's clerks went out to the warehouse and sampled the cotton at that place, and these samples were placed in a sack and taken by appellee back to Blytheville.
On the day the contract was made, appellant's manager, Levine, went to Blytheville, and negotiations between the parties took place between Levine and appellee personally in the latter's office. Appellee purchased the fifty bales of cotton at ten cents per pound, and that was delivered and paid for. On the bill, or account of sales, for the fifty bales, which appellee furnished to Levine showing the quantity of cotton and the total price, appellee made an unsigned pencil memorandum in the following words: "Bought 104 or 106 at Manila at 10c f. o. b. Blytheville press, to be delivered at once, or early as possible."
It was understood between the parties, and the testimony clearly shows, that there was some uncertainty as to whether appellant had 104 or 106 bales at Manila, and the agreement was that the sale was to cover the number of bales at Manila, whether 104 or 106. It turned out that there were only 104 bales. The contract was entirely oral, without any writing signed by the parties to be charged, and was clearly within the statute of frauds unless something else occurred between the parties to take the contract out of the operation of the statute. Crawford & Moses' Digest, sec. 4864.
The contention of appellant is that the contract for the sale of the undelivered cotton then at Manila was separate and distinct from the contract for the sale of the fifty bales in the warehouse at Blytheville, and that since there was no writing, and no delivery of any of that portion of the cotton, the circumstances did not take the case out of the operation of the statute of frauds. On the other hand, the contention of appellee is that there was only one contract, which covered the purchase of 154 bales of cotton, of which fifty bales were in the warehouse at Blytheville, and the other 104 bales were stored at Manila; that there was a delivery of the fifty bales and payment therefor, which took the oral contract out of the operation of the statute.
The law on this subject has been plainly settled in repeated decisions of this court, and the case presents merely a question of fact, whether or not the contract was an entire one for the sale of both lots of cotton, to be delivered in installments, or whether there were separate contracts without any delivery being made under the contract for the sale of the cotton in controversy. If, as contended by appellee, the sale was entire, and there was an actual delivery and acceptance of a part of the cotton sold, the case does not fall within the statute of frauds, and appellee is entitled to recover. Brockman Com. Co. v. Pound, 77 Ark. 364, 91 S.W. 183; Walnut Ridge Merc. Co. v. Cohn, 79 Ark. 338, 96 S.W. 413; Ark. Short Leaf Lbr. Co. v. McInturf, 134 Ark. 284, 203 S.W. 1047; Breckenridge & Brashears v. Hearne Timber Co., 135 Ark. 31, 204 S.W. 981.
There is a conflict in the testimony on the issue as to the entirety of the contract. It is admitted that there were four persons present when the contract was...
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