Westbrook v. Mente Company

McCulloch, C. J. Appellee is engaged in tbe business, at New Orleans, of manufacturing, among other things, bags made out of burlap. Appellant is engaged in the mercantile business at the city of Pine Bluff, and on August 23, 1920, appellant and appellee entered into a written contract for the purchase by the former from the latter of 75,000 yards of burlap made into bags, to be delivered in monthly installments during the months of September, 1920, to March, 1921, inclusive. Appellant was to give shipping directions from time to time for the installments, specifying the sizes of the bags to be shipped, and they were to be manufactured in accordance with those directions, and the bags were to have certain matter printed thereon in ink, as specified by appellant. Shipping orders were given by appellant from time to time during the months of September, October, November, December and January, but, up to the last date for shipment under the contract, March 31, 1921, only a small proportion of the quantity covered by the contract had been ordered and shipped out. However, further orders were given under the contract later, and the last shipment ordered and made was one for 5,000 bags in November, 1921. This last shipment did not fulfill the whole contract, and left 45,000 yards unshipped. -Appellant gave no further orders thereafter, and this action was instituted by appellee against appellant to recover damages on the ground that appellant had broken the contract by refusing to order and accept any more of the ■*»»bags specified in the contract. Appellant defended on the ground that the contract was broken on the part of appellee by failure and refusal to furnish bags of the kind and quality specified in the contract. There was a trial of the issues before a jury, bpt the court gave a peremptory instruction in favor of the appellee. Error of the court is assigned in excluding testimony offered by appellant and also in giving the peremptory instruction in favor of appellee. Appellee introduced as a witness Howell Danziger, the assistant manager of the business, who identified the contract between the parties and testified as to the quantity of deliveries made by appellee to appellant under the contract and the course of dealing between the parties up to the time of the alleged breach by the refusal of appellant to order or take any more of the bags. The contract shows that there was an average quota of 9,643 yards to be delivered during each month, and witness Danziger testified as to the amount of each delivery and the dates thereof. It appears from his testimony that there was a shortage of orders during each of the months, and that on March 31, 1921, the last day for deliveries, only a very small percentage of the quantity of bags specified in the contract had been ordered to be shipped. He testified that, after the last shipment of 5,000 bags in November, 1921, appellant, after repeated demands, failed to order out any more bags. He testified to repeated demands by letters and telegrams, to which appellant made no response. The testimony of this witness was also to the effect that appellant had never made any objections to the quality of the bags, except that in a letter ordering out a shipment of 5,000 bags in May, 1921, he asked for bags that were well sewed, and stated that he had had some trouble with bags pulling out at the seams, and also stated in the letter that he was not particular about the printing, as they were needing plain bags. The witness testified that this was the only complaint that was ever made to him. It is undisputed that all of the shipments of bags were accepted by appellant and paid for, and that appellant made no complaint after the acceptance of the last shipment of 5,000 bags in November, 1921. But appellant offered testimony to the effect that he had made repeated complaints to three different salesmen representing appellee on their respective visits to appellant’s place of business in Pine Bluff. The offered testimony was to the effect that the attention of these traveling salesmen was repeatedly called to defects in the bags received with respect to the sewing and also imperfect printing. The testimony offered by appellant was to the effect that the printing was imperfect, that the cut of the bag was unsatisfactory and that the sewing was poor. The testimony was to the effect that a large percentage of the bags were defective in those respects, and that complaint was made to appellee’s salesmen. The correct rule of law has been recognized by this court to be that, in a contract for the sale of articles to be delivered in installments, the purchaser cannot accept a delivery, even though it does not conform to the contract, and thereafter refuse on that account to accept other deliveries which do conform to the contract, but that the fact that the purchaser has accepted an installment falling short of the requirements of the contract does not require him to accept other installments which do not meet the requirements of the contract. Wooten & Co. v. Bain-Adams Co., 146 Ark. 462. This being the law applicable to the case, the court did not err in excluding the testimony offered by the appellant concerning the defects in the bags which were accepted and paid for. If appellant had refused to accept a shipment of bags which failed to come up to the requirements of the contract, he could have treated the contract as broken and refused to accept others, but he waived that breach by the acceptance, and treated the contract as being still in force. There was no testimony offered tending to show that appellee refused to ship bags of the kind and quality specified in the contract. All that the offered testimony showed was to the effect merely that the bag’s which were accepted were not in compliance with the contract, and, as we have already stated, there is no testimony that appellant ever made any complaint after the last shipment, which he accepted. Hence the testimony does not warrant an inference that appellee’s attitude was one of refusal to comply with the requirements of the contract with respect to future shipments. We are of the opinion therefore that the court was correct in excluding the testimony offered by appellant in regard to the defective quality of the bags which were accepted. The undisputed testimony in the case was that appellant waived the defective condition of all the bags that were shipped, and that he broke the contract by refusing to accept any more deliveries. Liability of appellant being established by undisputed evidence, there was no error in the court’s giving a peremptory instruction. 'The evidence is also undisputed as to the damage caused by the rapid decline in prices of bags which appellant refused to accept; in fact, there is no complaint of the judgment on that ground. Affirmed.