Townes v. Oklahoma Mill Company

• Decision Date: 06 April 1908
• Parties: TOWNES v. OKLAHOMA MILL COMPANY
• Court: Arkansas Supreme Court

109 S.W. 548

85 Ark. 596

TOWNES v. OKLAHOMA MILL COMPANY

Supreme Court of Arkansas

April 6, 1908

Appeal from Pulaski Circuit Court; Edward W. Winfield, Judge affirmed.

Judgment affirmed.

C. P Harnwell, for appellant.

F. L Boynton and J. H. Harrod, for appellee.

1. The jury's verdict on the facts will not be disturbed where there is evidence to support it, even though the evidence is conflicting. 3 Cyc. 348-351 and authorities cited.

2. Appellant cannot take advantage of self-invited error, nor be permitted to try his case in the lower court on one theory and upon a different theory in this court. 3 Cyc. 342, 343.

3. The jury were properly instructed that "if the failure of the plaintiff to give defendant shipping directions in time to ship caused the failure in shipping the 1,000 sacks, you will find for the defendant." 12 Otto 64; 43 Ia. 239; 79 Ill. 181; 10 C. B. 860; 73 N.C. 283; 63 N.Y. 365; 81 N.W. 712; 40 Ill.App. 396; 28 Hun, 141; 121 U.S. 264; 99 S.W. 701; Id. (Ark.) 80.

4. There was no contract. The contract to ship to New Orleans was broken by appellant's failure to furnish shipping tags. Defendant's letter of September 19th was clearly not an acceptance of plaintiff's proposition of September 14th nor a promise to ship 3,000 sacks of bran. 101 U.S. 43; 94 U.S. 29; 1 Benjamin on Sales, 88; 46 N.W. 607; 8 Ohio 657; 44 N.Y. 79; 11 Cent. Dig. 80-2, 88-9, 95; 9 Cyc. 267; 49 Ark. 355.

OPINION

MCCULLOCH, J.

This is an action instituted by appellant, J. M. Townes, against the Oklahoma Mill Company to recover damages for an alleged breach of the latter's contract to sell and deliver to him 1,000 sacks of bran. The jury returned a verdict against appellant, and he appealed to this court.

Substantially all of the material facts appear from the correspondence between the parties by mail and telegraph concerning the contract and the circumstances attending its non-fulfillment.

The contract was for the Sale of 3,000 sacks of bran to be delivered during the month of September, 1906, of which appellee delivered 2,000 sacks in accordance with the contract, but failed to deliver the remainder. The price of bran advanced, and appellee sues to recover the difference between the contract price and the price he was compelled to pay for it.

Appellant was engaged in business at Little Rock, Arkansas, and appellee at Kingfisher, Oklahoma, and on August 22, 1906, they entered into a contract by wire for the sale of 3,000 sacks of bran "for September shipment scattered throughout the month." The bran was to be shipped to Little Rock. Subsequently, on August 25th appellant changed the shipping direction and requested shipment to New Orleans, and stated in his letter communicating the request that he was then having papers gotten up for compliance with the laws of the State of Louisiana concerning the sale and inspection of bran in that State. Appellee replied on August 27th consenting to this change, but requested that appellant furnish tax-tags required by the Louisiana law without delay, "so that we can get right to work on your shipment." Appellant wrote again on August 29th as follows: "I have yours of the 27th regarding the bran to New Orleans, asking me to furnish tags required without delay. I have ordered the tags forwarded, and am expecting them today. As soon as they are received, will express them at once and give you full instructions."

Nothing further transpired until September 14, 1906, when appellant wrote to appellee requesting that the bran be shipped to Little Rock, instead of New Orleans. Appellee replied to this by letter dated September 17th, stating in substance that it had been waiting for the Louisiana tax-tags, and, on account of the delay, doubted its ability to ship the bran during the month, but would make best effort to do so.

On September 19th appellee sent the following letter to appellant: "We have your D-M of E-D asking how much bran we have in transit, to wire numbers, as you were needing it badly, and we sent you collect message advising you we were loading Rock Island car No. 57210 today with 600 sacks, further stating that we Could not quote more bran, which we now confirm. We sent this message at your expense because delay in getting bran out to you is not our fault. Since we had your letter some time ago advising us to hold this bran until we got shipping instructions and tax tags to ship this bran to Louisiana, we were thus compelled to sell some bran elsewhere, as we had not the storage room, consequently we were behind on this bran. We will now get it out as fast as possible."

Appellee subsequently delivered 2,000 sacks during the month, but failed to deliver the remainder, and refused to do so in November when specific demand for it was made.

The secretary and manager of appellee company testified, in substance, that appellee manufactured all the bran it sold and that when the contract was made with appellant for the sale of 3,000 sacks for September delivery this, with other contracts...