Walnut Ridge Mercantile Co. v. Cohn

• Decision Date: 11 June 1906
• Citation: 96 S.W. 413
• Parties: WALNUT RIDGE MERCANTILE CO. v. COHN.
• Court: Arkansas Supreme Court

96 S.W. 413

WALNUT RIDGE MERCANTILE CO. v. COHN.

Supreme Court of Arkansas.

June 11, 1906.

On Rehearing, July 23, 1906.

Appeal from Circuit Court, Lawrence County, Eastern District; Frederick D. Fulkerson, Judge.

Action by R. Cohn, doing business as R. Cohn & Co., against the Walnut Ridge Mercantile Company. Judgment for plaintiff. Defendant appeals. Affirmed.

1. Less was the vice president and general manager of the Walnut Ridge Mercantile Company, a corporation doing business in Walnut Ridge, Ark. In 1903, acting for the mercantile company, he made a contract for the sale of a certain quantity of middling cotton to R. Cohn, of Memphis, Tenn., at 9½ cents per pound. The mercantile company afterwards delivered to Cohn 34 bales of cotton, but refused to deliver more. Cohn brought this action against the mercantile company to recover damages for breach of contract. He alleged that his contract with the defendant company was for 100 bales of cotton of the grade middling, at price of 9½ cents per pound; that the defendant delivered on the contract 34 bales of cotton and refused to deliver more; that plaintiff thereupon purchased 66 bales of middling cotton for the account of defendant at 11½ cents per pound; that plaintiff, by reason of the failure of defendant to deliver the cotton, was damaged in the sum of $3,917.13, for which he asked judgment. The defendant filed an answer denying most of the allegations of the complaint. On the trial the court gave certain instructions and refused other instructions asked by defendant. The language of the bill of exceptions noting exceptions of defendant to these instructions is as follows: "Court Instructions: The following given upon behalf of the plaintiff, numbered 1, 2, 3, and 4, which were excepted to by defendant. The court upon its own motion gave instructions 5, 6, 7, and 8, which were excepted to by defendant. The defendant asked instructions numbered 1, 2, 3, and 4, which were refused by the court, and the refusal to give same were excepted to by the defendant." After this statement in the bill of exceptions the instructions are copied in full, without any further reference to exceptions. There was a verdict in favor of plaintiff for the amount of his claim, and defendant appealed.

W. E. Beloate, for appellant. H. L. Ponder and Jno. W. & Jos. M. Stayton, for appellee.

RIDDICK, J. (after stating the facts).

This is an appeal by the Walnut Ridge Mercantile Company from a judgment rendered against it for the sum of $631.62 in favor of R. Cohn for failure to carry out a contract for the sale of 100 bales of cotton. The defendant reserved exceptions to a number of instructions given by the presiding judge to the jury on the trial, but these exceptions were in gross, and not to any specific instruction, as will be seen by reference to the statement of facts where the exceptions are copied. Such a general exception is only available where the charge is erroneous in its whole scope and meaning, or where none of the instructions given by the court are correct. We do not find that the charge of the court is in this case so radically wrong, and therefore, if there be any special defect, it is not presented by the general exception made. Quertermous v. Hatfield, 54 Ark. 16, 14 S. W. 1096; Dunnington v. Frick, 60 Ark. 250, 30 S. W. 212; Young v. Stevenson (Ark.) 86 S. W. 1000; Dowell v. Schisler (Ark.) 88 S. W. 966; 8 Ency. Plead. & Prac. 258, 259.

The next question relates to the admission of evidence on the part of plaintiff. It seems that the negotiations between the company and the plaintiff, which resulted in this contract for the sale of the cotton, were carried on by the defendant through Mr. Less, the vice president and general manager of the company. The plaintiff testified that he first wrote Mr. Less in reference to the purchase of cotton, and received a reply from him saying, "We turn out 30 to 40 bales per day," and asking plaintiff to make "an offer on 50 to 100 bales F. O. B. Walnut Ridge." This letter was signed: "Walnut Ridge Gin Co. per R." Defendant contends that, as this letter was from the Walnut Ridge Gin Company, it was not competent evidence against the Walnut Ridge Mercantile Company. But the testimony of Less, the general manager and vice president of the mercantile company, shows that this letter from the gin company was dictated by him, and written by Redwine, the bookeeper of the mercantile company. It was a part of the negotiations between plaintiff and Less, the general manager of the defendant, which led up to the sale of the cotton, and was, we think, competent as a part of the res gestæ of the transaction, showing how the negotiations for the sale of the cotton commenced.

Again counsel contends that the court erred in permitting the plaintiff to read to the jury the receipted bill of the cotton factors from whom the plaintiff purchased the 66 bales of cotton after defendant had refused to deliver the remaining 66 bales due on its contract. The plaintiff testified that he went into the open market and purchased this cotton from these factors at 11½ cents a pound, and read their receipted bill for the same in connection with his evidence. Now, it is customary for cotton factors to give such bills to purchasers of cotton, and this receipt was a part of the res gestæ of the sale. Being an admission against the interest of the factor making it and made in the ordinary course of his business, it was, we think, competent evidence of the fact of the sale and price that was paid even in an action between third parties. Sherman v. Crosby, 11 Johns. (N. Y.) 70; 1 Greenleaf on Ev. § 120, and note to section 147. It may not have been competent evidence of the market value of cotton, but only evidence that plaintiff had paid the cotton factor 11½ cents for cotton on that day. But where evidence is admissible for any purpose, an exception to the admission of the evidence cannot be sustained. The court should have been asked to tell the jury that they could not consider such evidence in deciding the question of the market value of the cotton.

The other questions relate to the sufficiency of the evidence. But, without going into a discussion of it, we will say that we think the evidence sufficient to support the finding of the jury that there was a contract for 100 bales of cotton. Mr. Less, the general manager of defendant, was positive that he only agreed to sell 50 bales, but the finding of the jury where the evidence is conflicting settles the question so far as this court is concerned. The delivery and acceptance of part of the cotton on the contract and payment therefor takes the case out of the statute of frauds. The evidence makes it clear to us that the 34 bales of cotton delivered by the defendant to the plaintiff and paid for by him were delivered on this contract. According to the testimony of Less, the manager of the defendant, these were delivered on a contract to sell 50 bales. It is conceded that there was only one contract, though whether it was a contract for the purpose of 50 or 100 bales was a disputed question. But a part of the cotton bought having been delivered and accepted on the contract and paid for, the whole contract was taken out of the statute without regard to whether it was a contract for 50 or 100 bales....