Walter Pratt & Co. v. Meyer

• Decision Date: 29 April 1905
• Citation: 87 S.W. 123
• Parties: WALTER PRATT & CO. v. MEYER.
• Court: Arkansas Supreme Court

87 S.W. 123

WALTER PRATT & CO. v. MEYER.

Supreme Court of Arkansas.

April 29, 1905.

Appeal from Circuit Court, Craighead County, Jonesboro District; Hance N. Hutton, Judge.

Action by Walter Pratt & Co. against Max Meyer. From a judgment in favor of defendant on appeal from a justice's judgment in favor of plaintiff, plaintiff appeals. Reversed.

Frierson & Frierson, for appellant.

BATTLE, J.

Walter Pratt & Co. brought an action against Max Meyer before a justice of the peace of Craighead county for $133.38, upon a written contract by which the plaintiffs agreed to sell and deliver to the defendant a bill of perfumes, soaps, and toilet articles. In the justice's court plaintiffs recovered judgment. Meyer appealed, and the trial in the circuit court resulted in a verdict for defendant. Plaintiffs appealed. The order for the goods, signed by Meyer and by the salesman of the appellants on February 12, 1902, is as follows:

"Jonesboro, Ark. 2-12-1902. Walter Pratt & Co., Chicago, Ill.—Gentlemen: Please ship us, care Burlington, Cedar Rapids and Northern Railway, the assortment of goods listed above, like sample shown us by your salesman, at the prices specified, and in accordance with all the terms above specified; which we have carefully read and find to be complete and satisfactory. We have no agreement or understanding with salesman except as printed or written on this order. Receipt of duplicate of this order from your salesman is hereby acknowledged. [Signed] Max Meyer. Walter Pratt & Co. by M. Sankey, Salesman."

A further provision of the contract was: "Separate verbal or written agreements with salesmen are not binding on Walter Pratt & Co. All conditions of sale must be shown on this order."

The only warranty in the written contract is as follows: "Warranty. All goods are warranted to be same in quality, material and in all other respects as samples shown by salesman. The purchaser agrees to examine and inspect the goods at once upon their arrival at destination, and if said goods fail to comply with said warranty, he shall, within five days from date of arrival at destination, give detailed written notice of such failure by registered letter to Walter Pratt & Co., Chicago, Ill. otherwise all warranty of said goods is waived."

The goods were delivered to Meyer before April 9, 1902. No written notice by registered mail or otherwise was received by appellants within five days after the arrival of the goods, of the claim that the goods failed to conform to sample.

One witness, in behalf of appellants, testified in substance as follows: "That the goods sold and delivered Meyer were of the exact quality called for in the contract of sale. That witness filled the requisition from the shipping department from the general stock of Walter Pratt & Co. That the salesman, Sankey, was provided with a full line of samples of the goods named in the contract, of identically the same kind as were shipped Meyer. That the quality of the goods could be determined by an examination of the samples, and any defects could have been discovered by examining the samples. That the goods sold Meyer were manufactured and were handled by the plaintiffs as merchants; a large stock being kept on hand, and replenished from time to time by the manufacturing department. The goods were in stock when sold to Meyer. A business man ought to be able to check up and ascertain in a few hours, and to determine whether or not the goods complied with the contract in quantity and quality, and a day or two would be a reasonable time for an ordinarily intelligent business man to ascertain whether or not the goods were merchantable and reasonably fit for the purpose for which they were sold. Ordinarily such an...