Walter Pratt & Co. v. Metzger

• Decision Date: 10 March 1906
• Citation: 95 S.W. 451
• Parties: WALTER PRATT & CO. v. METZGER.
• Court: Arkansas Supreme Court

95 S.W. 451

WALTER PRATT & CO. v. METZGER.

Supreme Court of Arkansas.

March 10, 1906.

Appeal from Circuit Court, Conway County; Wm. L. Moose, Judge.

Action by Walter Pratt & Co. against M. A. Metzger. From a judgment in favor of defendant, plaintiff appeals. Reversed.

W. P. Strait, for appellant. Sellers & Sellers, for appellee.

BATTLE, J.

This case is very much like Pratt v. Meyer (Ark.) 87 S. W. 123. Walter Pratt & Co. brought an action against M. A. Metzger, before a justice of the peace of Conway county, for $198.88, 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 the defendant recovered judgment, and the plaintiff appealed to the circuit court where the defendant was again successful, and plaintiffs appealed to this court.

The same order for the goods was given in this case as was given in Pratt v. Meyer, supra, and the same warranty was made and on the same conditions. The same evidence, substantially, was adduced by the plaintiffs in the two cases.

Appellee testified over the objections of appellants as follows: "And in the contract I never noticed about notes at all until that night I sat down and read it, and I noticed it said notes. * * * I wrote that I didn't notice that the contract called for notes, and that I didn't make any notes at all"; and that the goods purchased were not suitable for his trade.

The court refused to instruct the jury, at the request of appellants, as follows:

(1) "The failure to comply with reasonable conditions imposed by the contract of sale is fatal to the vendee's remedy for a breach of the warranty, whether he attempts to exercise it by action on the warranty or by setting up a breach of the warranty, in defense of an action for the price by the seller. The law is well settled that where an express warranty is upon condition, or where duty is devolved upon the purchaser by the terms of warranty, such condition must be fulfilled or such duty performed before an advantage can be taken of a breach of such warranty."

(2) "A party is bound to know the contents of a writing signed by him and if he signs it without reading it or relying upon the representations of a stranger, he is nevertheless bound by the contract and cannot testify as to his understanding of the contract, different from the plain written terms of the contract."

(3) "A contract having several distinct items and founded upon a consideration apportioned to each is severable. If you find that a part of the articles covered by the contract is in grade, kind and quality as therein provided and they have a value or price apportioned to them, separate from the price of other goods not up to contract price and grade, then you will find for the plaintiff for the price of goods which are equal in grade to that provided by the contract."

And instructed them, over the objections of the appellants, as follows:

"(a) If you find from the testimony that the goods were inferior in quality to the samples by which they were sold, and that the defendant, on receipt of the goods, notified the plaintiff, or the plaintiff's attorney, that he declined to accept the goods because of the fact that they were not equal to the samples by which they were sold, and if the defendant has not yet accepted the goods, your verdict should be for the defendant."

"(c) If the original contract was induced by fraudulent representations made by the representative of the plaintiff, then when Mr. Metzger discovered that he had been imposed upon, if the fact was true, he would have a right to repudiate the whole contract. I doubt if he would be required to give anybody notice. If that is true, the original contract was fraudulent. If he notified the attorney of plaintiff that he...