Weaver-Dowdy Co. v. Fritz

• Decision Date: 10 November 1913
• Citation: 160 S.W. 1085,110 Ark. 90
• Parties: WEAVER-DOWDY COMPANY v. FRITZ
• Court: Arkansas Supreme Court

160 S.W. 1085

110 Ark. 90

WEAVER-DOWDY COMPANY v. FRITZ

Supreme Court of Arkansas

November 10, 1913

Appeal from Faulkner Circuit Court; Hance N. Hutton, Judge on exchange; reversed.

Reversed and remanded.

McCaleb & Reeder, for appellants.

1. The burden was on appellee to prove that Mrs. Albert was the agent of appellants. 2 A. & E. Enc. L. & P. 973-978; 10 Enc Ev. 27, 28, note 83; 5 Id. 699.

2. Legal conclusions or opinions are not admissible. Ib. 699; 15 Col. App. 403; 119 Mich. 136, 48 S.W.771; 63 P. 820; 23 Utah 71; 31 Cyc. 1643; Ib. 1665; 17 Id. 219, note 90, and p. 222, note 96.

3. The testimony of an agent is competent to establish the fact of his agency, or vice versa. 31 Cyc. 1651; 2 Enc. L. & P. 978; 54 N.Y. 167; 10 Enc. of Ev. 31, and note 91.

4. The depositions of George H. Trevathan and wife and Mrs. J. Allen Trevathan should have been quashed. Kirby's Dig §§ 3184, 185.

OPINION

MCCULLOCH, C. J.

The Weaver-Dowdy Company, a corporation, was engaged in the dry goods business in Batesville, Arkansas, and among other features of its business, took orders for ladies' suits, and forwarded such orders to a tailoring establishment in Chicago to have the suits made. During the month of September, 1911, defendant, Mrs. Beulah Fritz, who was then unmarried, gave the plaintiff, Weaver-Dowdy Company, an order for a suit. The order was forwarded, and when the suit was made and returned to plaintiff, the latter delivered it to the defendant, who found it to be unsatisfactory in fit and declined to receive it. There is some controversy in the testimony whether the defendant declined to accept the suit at first or whether she accepted it for the time and later returned it. That controversy may, however, be passed for the purposes of deciding the other questions presented to us here. Suffice it to say that the defendant did refuse to accept or keep the suit on the ground that the fit was unsatisfactory, and the plaintiff instituted this action to recover the price.

Mrs. Carrie Albert was engaged in the dressmaking business in Batesville, and had a room upstairs over the store of plaintiff. Defendant engaged Mrs. Albert to make some dresses for her, and upon the suggestion being made that she would like to have a tailored suit Mrs. Albert told her that plaintiff took orders for tailored suits and went down into the store and got a book of samples. A sample was selected and Mrs. Albert took the measurement, and turned the order over to the plaintiff.

Evidence adduced on the part of the plaintiff is to the effect that Mrs. Albert was not the plaintiff's agent for any purpose and that the plaintiff had not authorized her to make the measurement, the contention of the plaintiff being that Mrs. Albert, in making the measurement, necessarily acted as the agent of defendant.

There is conflict in the testimony as to whether the suit, when it came, was a good fit; but that conflict must be treated as settled by the verdict of the jury in defendant's favor.

The defendant testified that the suit did not fit and that, as the sample book contained the statement of "Satisfaction guaranteed," she declined to accept it. It is not contended that the material was not of the kind ordered, but the only objection to the suit was that it was not a nice fit.

Inasmuch as we must treat the verdict as settling the issue whether the suit was a satisfactory fit so as to come up to the contract, the case turns on the decision of the question as to which of the parties was responsible for the misfit.

It is necessarily implied in the contract, even if not so expressed, that the suit should fit, and if the plaintiff was responsible for the misfit it can not, for obvious reasons, be permitted to recover the price.

At or near the conclusion of defendant's testimony, she was asked by counsel, over the objection of plaintiff, the question, "Who did Mrs. Albert represent in the ordering of the dress?" and, over objection of plaintiff, was permitted to make reply that "She was representing the Weaver-Dowdy Company." These objections were carried forward in the motion for new trial, and the ruling of the court thereon is assigned as error.

The answer of the witness merely stated a conclusion and should not have been admitted. She did not state any facts...