Toledo Computing Scale Co. v. Stephens

• Decision Date: 05 December 1910
• Citation: 132 S.W. 926,96 Ark. 606
• Parties: TOLEDO COMPUTING SCALE COMPANY v. STEPHENS
• Court: Arkansas Supreme Court

132 S.W. 926

96 Ark. 606

TOLEDO COMPUTING SCALE COMPANY v. STEPHENS

Supreme Court of Arkansas

December 5, 1910

Appeal from Benton Circuit Court; J. S. Maples, Judge; affirmed.

STATEMENT BY THE COURT.

On the 9th day of December, appellees gave to the agent of appellant a written order for a pair of scales to be shipped to them at their place of business at Sulphur Springs in the State of Arkansas. The order was addressed to appellant at its place of business at Toledo, Ohio, and contained a provision that the order should not be countermanded. The price to be paid was $ 275, as follows: "$ 25 cash with order; $ 20 on delivery; balance $ 30 per month evidenced by notes." Twenty-five dollars was paid when the order was given, and notes for $ 30 each for the balance was executed. This suit was brought in a justice of the peace court to recover on the notes.

The defense that the order was countermanded before it was accepted was interposed. The case was appealed to the circuit court, and was there, by agreement, tried before the court sitting as a jury. After introducing in evidence the written order for the scales, the appellant adduced evidence tending to show that the order was received on the 15th day of December, 1908, and that it was at once accepted and notice of acceptance at once was mailed to appellees. That "when the order was received and accepted, the usual course was followed in putting the order through the factory and in making the delivery f. o. b. Toledo, as stipulated in the order." After the scales were constructed, they were delivered on board the cars, and consigned to appellees at Sulphur Springs, Ark., on January 19, 1909. Appellees declined to receive them, and they were destroyed by fire after their arrival at Sulphur Springs while in the hands of the carrier. Appellees testified that, on the next night after they had given the order, they sold out their business and telegraphed to appellant at its place of business in Toledo that they countermanded the order; that on the same night they sent a letter to appellant at Toledo, Ohio countermanding the order, and that a letter would travel from Sulphur Springs to Toledo, Ohio, in two days; that a few days after the countermand they telephoned the agent of appellant to whom they had given the order for the scales, at Rogers Ark., that they countermanded the order.

The head of the order department of appellant testified that they never received a letter from appellees countermanding the order; but says they did receive a telegram from them, on the morning of the 16th of December, 1908, which had been sent as a night message on the 15th inst., cancelling their order for the scales.

The court found for appellees, and from the judgment rendered an appeal has been prosecuted to this court.

Judgment affirmed.

Rice & Dickson, for appellant.

The stipulation in the contract that the order should not be countermanded is binding upon the appellee. 75 Ark. 210. The agreement entered into cannot be rescinded by one of the parties. 83 Ark. 426. If it had been an order of the usual open kind, it still could not be countermanded after its receipt and acceptance. 74 Ark. 18.

McGill & Lindsey, for appellees.

1. In the absence of an agreement to the contrary, the order could be countermanded at any time before acceptance. 74 Ark. 16. And, even though there is an agreement not to countermand, the order could be countermanded, unless there was some consideration for the agreement. 24 Am. & Eng. Enc. of L. 1030; I Benjamin on Sales (4 Am. ed.), § 41.

2. There could at most, in this case, be nothing more than a breach of an executory contract to purchase made before the scales were shipped, and before their manufacture could have begun, and appellant's remedy would be a suit for a breach of the contract. 2 Benjamin, Sales, §§ 1117 and 1118 and notes; 92...