Matthews v. Freker

Battle, J., (after stating the facts.) This action was for the price of a car load of potatoes, which were alleged to have been sold by L. A. Freker & Go. to J. P. Matthews & Co. In the account filed with the justice of the peace Matthews & Go. were charged with having bought the potatoes. In the affidavit annexed to the account Freker swore that the account “for goods, wares and merchandise sold and delivered by said firm (Freker) to said J. P. Matthews & Co. was just, true and correct in all particulars.” Matthews & Co. denied having purchased the potatoes, or being indebted to Freker for the same. The cause of action was the sale of the potatoes. The justice of the peace could not have acquired jurisdiction of the-suit as an action ex delicto, the amount in-volved being $126.70, and his jurisdiction in matters of damage to personal property being limited by the constitution lo cases where the amount in controversy does not exceed the sum of one hundred dollars. The circuit court acquired by the appeal no jurisdiction except that which the justice of the peace had; neither could it try any cause of action except that tried by the justice of the peace. The only question in the case, then, is, did Freker sell to Matthews & Co. the car load of potatoes? In Benjamin on Sales it is said: “To constitute a valid sale, there must be a concurrence of the following elements, viz.: (l) Parties competent to contract; (2) mutual assent; (3) a thing, the absolute or general property in which is transferred from the seller to the buyer; and (4) a price in money paid or promised.” Sec. 1. Did the mutual assent necessary to constitute a valid sale exist in this case? The right of Freker to recover of Matthews & Co. is based upon the telegram in which they said: “Rush both cars. Send papers of - Mena car to ourselves.” Matthews & Co. did not expressly agree to purchase' the potatoes, or to pay for them. The word “rush” might imply that they were of the opinion that Foster & Co. would accept the potatoes if they were promptly shipped. Foster & Co. wanted the potatoes, and were impatient on account of the delay in their shipment. Foster testified that they were to be shipped immediately; that their “customers were crowding them for potatoes, and they had to have them as soon as possible.” The order for the potatoes was received by Freker on the morning of the 25th of February. On the same day he received a telegram from Foster & Co., asking if both cars were shipped, and Freker replied: “Fort Smith shipped to-day; Mena car to-morrow.” In the afternoon of the same day Freker received another telegram from Foster & Co. countermanding the order, which he answered by saying: “Fort Smith car loaded, and ticket signed. Mena order received by mail to-day, and are loading.” Foster & Co. replied by saying “they would not accept the Mena car under any circumstances.” They did not countermand the order for the potatoes which were sent to Fort Smith. They had been shipped. When Freker received the last telegram from Foster & Co. countermanding the “Mena order,” he wired to Matthews & Co. as follows: “Mena car nearly loaded. Goes forward to-day. We are not at fault. Convince Foster.” After this he received a telegram from Matthews & Co. saying: “Rush both cars. Send papers of Mena car to ourselves.” J. P. Matthews testified that Matthews & Co. did not receive the telegram asking them to “convince Foster” until after they had sent the telegram to Freker. But, assume that it was received before, did they thereby intend to propose to purchase or pay for the potatoes which were ordered to be shipped to Mena? If so, their telegram might also mean that they proposed to purchase or pay for the car load which had been shipped to Fort Smith, for they said, “Rush both cars.” No one contends for this construction, for that order was not countermanded. The direction in the telegram to “send papers of Mena car to ourselves” did not necessarily imply that they would purchase or pay for the potatoes shipped to Mena, for Matthews testified: “I had this car of potatoes sent íd my name in order to get the benefits of a certain freight rate. * * * I had a guaranty from the railroad that such rate should obtain. I explained to Freker to ship in my name unless he could get that rate. Fearing that he could not get that rate, I wired him to send the papers to Matthews & Co. Both he and Foster knew the reason.” The jury might reasonably have inferred from all the evidence in the case that Matthews & Co. did not intend by their telegram to Freker to purchase the potatoes, but they showed thereby that they were of the opinion that Foster & Co. would pay for the potatoes if they were promptly shipped to, and received at, Mena. But the jury were not permitted to take this view of the facts. The court, over the objections of Matthews & Co., instructed them as follows: “3. But if they sent said teiegram without the authority of J. Foster & Co., and at the time they sent it they knew that Foster had countermanded the order for the Mena car of potatoes, or if at that time they had received the telegram from plaintiffs, ‘Mena car loaded. Goes forward to-day. We are not at fault. Convince Foster’ — then defendants J. P. Matthews & Co. are liable for the contract price of the car. “4. But if Matthews & Co. sent the telegram (‘Rush both cars,’ etc.) before receipt of the telegram of plaintiff stating that ‘We are not at fault. Convince Foster,’ and if said telegram, ‘Rush both cars,’ etc., was without authority of Foster & Co., then the liability of Matthews- & Co. depends on whether or not, after subsequent receipt of the telegram, ‘Mena car nearly loaded. Goes forward to-day. We are not at fault. Convince Foster,’ Matthews & Co. acted with ordinary care “5. Ordinary care means the care that would be expected of a reasonable, careful, prudent and competent broker, under all the circumstances. Now, if, after sending the telegram, ‘Rush both car's,’ etc., Matthews & Co., received the telegram sent by plaintiff, stating, ‘We are not at fault. Convince Foster,’ — and if ordinary care under all the circumstances would have led them to make inquiries, and they could have thereby ascertained the state of affairs, and informed plaintiffs thereof, and they failed to use such care, then they are liable. But if they did use ordinary care, or if they failed to make inquiry, and snch. failure was want of ordinary care, then they are liable.” In giving these instructions the court erred. Reversed and remanded for a new trial.