Cochran v. Chetopa Mill & Elevator Co.

Battle, J., (after stating the facts.) After appellant failed to get the car load of chops in Little Rock, he, on the 14th day of May, 1907, ordered appellee to ship him 400 sacks of corn chops, agreeing to pay $1.10 a sack for the same. On the day following appellee, by telegram, agreed to do so. No condition was annexed to the order or acceptance. But, upon appellee drawing a draft upon him for the purchase price of the chops, appellant refused to pay it until he had inspected the chops and found them satisfactory, and appellee refused to deliver the chops until its draft for the purchase money was paid, and no sale was made. As the goods were sold by the manufacturer without inspection, the law implied a warranty that the chops were merchantable, and reasonably fit for the purpose for which they were intended. (Main v. Dearing, 73 Ark. 470, and cases cited; Main v. El Dorado Dry Goods Co., 83 Ark. 15.) This was, in part, the legal effect of .the contract as made. But appellant sought to interpolate into it the right to inspect the chops and the right to reject them if the inspection was not satisfactory to himself. As he sought to amend the contract, there was to be no sale until such inspection was made and proved satisfactory to him. His demand and contention amounted to a refusal to abide by his contract as made, the effect of which was to .relieve appellee of its obligation to appellant, if it elected to so treat the contract. Judgment affirmed. Wood, J., dissenting.