Merchants' Grocery Co. v. Ladoga Canning Co.

Battue, J. On the 24th day of May, 1907, the Merchants’ Grocery Company purchased of the Ladoga Canning Company 750 cases of com, containing 18,000 cans of 1906 packing. The purchase was made by sample, and the Merchants’ Grocery Company agreed to pay fifty-five cents per dozen cans. The corn was promptly delivered by the Canning Company on .the cars of the railroad company at Ladoga, and on or about the 12th day of June following arrived at Searcy, Ark., the home of the Merchants’ Grocery Company. Upon its arrival the car was opened, and the com was unloaded and hauled a distance of three blocks to the warehouse of the Merchants’ Grocery Company, which was engaged in the wholesale grocery business and purchased the corn for its general wholesale trade. Two days later the Merchants’ Grocery Company examined the corn and pronounced it spoiled, whereupon it was reloaded into the car and the entire shipment refused. This refusal was immediately wired to the Canning Company, which at once wired that the refusal was unwarranted, and the shipment must be accepted. The Merchants’ Grocery Company still refusing to accept the corn, the Canning Company wired to its brokers to resell the corn if possible, and in case of not selling it to ship it to Little Rock for storage. There being no other dealers in Searcy to buy, the corn was shipped to Little Rock.” On the sixth day of September, 1907, the Merchants’ Grocery Company purchased of the Illinois Canning Company 500 cases of corn containing 12, 000 cans of 1907 packing, paying for it sixty-seven and one-half cents per dozen. The Merchants’ Grocery Company then brought this -action against the Canning Company for the difference in the price of the two shipments per dozen cans. In a trial of the issues in the action the jury returned a verdict in favor of the defendant; and plaintiff appealed to this court. There was a conflict of the evidence as to the goods conforming to the -contract of purchase, that is to say, the samples by which the sale was made. There was evidence to sustain the verdict of the jury. In the progress of the trial the appellee was allowed, over the objection of the appellant, to adduce -evidence to prove .a custom or usage “among the canned goods trade of the country” to the effect that “the buyers shall keep an account of the swells and report -to the seller by any given time after the sale of the goods, and the seller shall then reimburse the buyer for such swells;” and not to refuse to take the goods -on account of the swells, unless there was “an unreasonable amount of swells.” Appellant objected specifically -because it was not shown that it had notice of the usage or custom. The appellee was also permitted to adduce. evidence, over objection of the appellant, to prove that it sold the rejected corn to the Penz-el Grocery Company for seventy cents by the dozen. A card published by William D'ugdale quoting -corn as late as August 17, 1907, from fifty-five to fifty-seven and a half cents, was read as evidence over the objection of the appellant. Lvidence was adduced tending to prove that there was a gradual advance in the price of canned -corn all over the country from the 12th -of June to the first of September, 1907, and that “the lowest advance that any of the -canning factories quoted was about twenty-two and one-half -cents per dozen.” iThe court gave the following instruction, -over the objection of -appellant, t-o the jury: “If you find from the evidence that it is a -custom among dealers in -canned corn that the buyers shall keep account of all swells and report to the seller by any given time after the sale of the goods, and that the seller shall then reimburse buyer for such swells, and you further find from the evidence that it is also the custom for the buyer not to -refuse to take the goods on a-c-' count of a moderate quanty of swells, then you are instructed that plaintiff could not reject said goods on account of swells unless the quantity of swells was so great that the custom would not require plaintiff to take them, and that this is true, irrespective of whether there were any swells in the samples.” The evidence adduced to prove a custom or usage was insufficient. Among other things it should have been shown to have been in existence a sufficient length of time to have become generally known. There was no evidence to show how long it had been established. The court therefore erred in giving the instruction copied in this opinion. Ward Furniture Manufacturing Co. v. Isbell, 81 Ark. 549, 561. The evidence and’instruction were prejudicial in that the jury might have inferred from them that appellant should not maintain his action. The evidence that the rejected corn was sold to Penzel Grocery Company at an advance price was clearly incompetent. The evidence as to card published by William Dug-dale was also inadmissible. Professor Wigmore says: “A printed list of prices at which a class of goods is for sale to any purchaser, or a printed report of the prices obtained at actual sale in open market, may become trustworthy so far as it is intended to be consulted by all persons who care to know the prices, and has been exposed to a test of accuracy by dealings with such persons on the faith of it, and has further been by their experience found generally reliable. A price-current list or a market report which fulfils these conditions and has thus sufficed for the correct information of persons who transact commercial operations on the faith of it may well suffice for informing a court of justice.” 3 Wig®101^ 011 Evidence, §' § 1704 and 1702. In Sisson v. Cleveland & Toledo Railroad Co., 14 Mich. 489, 496, Mr. Justice Oooley, speaking for the court said: “Evidence of the state of the markets, as derived from the market reports in the newspapers, should not have been excluded.* * * The principle which supports these cases will allow the market reports of such newspapers as the commercial world -rely upon to be given in evidence. As a matter of fact, such reports, which are based upon a general survey of the whole market and are constantly received and acted upon by dealers, are far more satisfactory and reliable than individual entries or individual sales or inquiries; and courts would justly be the subject of ridicule if they should deliberately shut their eyes to the sources of information which the -rest of the world relies upon, and demand evidence of a less certain and satisfactory character.” See St. Louis & S. F. Rd. Co. v. Pearce, 82 Ark. 353, 358; Cliquot's Champagne, 3 Wall. 114, 141; Terry v. McNeil, 58 Barb. 241, 247; Fairley v. Smith, 87 N. C. 367, 371. It was not shown that dealers in canned goods constantly received and acted upon the Dugdale card, and has thereby proved it worthy of confidence and reliable; and it was not competent evidence. Reverse and remand for new trial.