Roach Wholesale Grocery Co. v. Dreyfus Bros.

Hart, J., (after stating the facts). It was the contention of the plaintiff that the transaction between it and M. Dreyfus was a contract for the sale to it of candies by the defendants. On the other hand, it was the theory of the defendants that the transaction was an order, and did not amount to a sale until the order was accepted by them. The respective theories of the parties were submitted to the jury by the court on proper instructions. It is the contention of counsel for plaintiff that the undisputed evidence shows that the transaction was a sale, and that therefore the court should have directed a verdict in favor of the plaintiff. We do not agree with counsel in his contention. It is true that the salesman, M. Dreyfus, was a member of the firm of Dreyfus Brothers, and may be, therefore, said to have had authority to have made a sale of the candies. It will be noted, however, that E. T. Roach, the manager of the plaintiff company, refers to the transaction in his testimony as being an order. He says that the goods were to be shipped out in thirty days, yet two months were allowed to elapse before any inquiry was made as to the reason why the goods were not, shipped. It appears from the answer written by the defendant in response to his inquiry that he had spoken of the transaction between them as an order, and not as a contract of sale. They evidently understood it that way, and in subsequent correspondence about the matter, both parties again referred to it as an order. It is shown that it was the general custom in the wholesale trade that, where an order was sent in and credit was involved, the order was subject to the approval of the firm before it was accepted and the goods shipped. Mr. Roach himself admits that he knew this was the custom in the wholesale grocery trade, and the defendants testify that such was the general custom, and their custom in particular, and that, having made an investigation of the financial standing of the plaintiff, and having found it to be unsatisfactory, they declined to accept the order, and so notified the plaintiff. Under these circumstances, the jury was warranted in finding that the transaction was an order, and not a completed sale. It is next contended by counsel for plaintiff that the court erred in admitting the evidence of D. R. Dreyfus, relating to the particular custom of his firm. As we have already stated, the evidence on the part of the defendants shows that it was the general custom in the wholesale grocery trade to make an investigation of the financial standing of the proposed purchaser before an order would be accepted and the goods shipped. Tt was also admitted by Mr. Roach that he knew of the existence of this general custom. Therefore, this testimony was competent. Arkadelphia Lbr. Co. v. Henderson, 84 Ark. 382; Merchants Grocery Co. v. LaDoga Canning Co., 89 Ark. 591. It becomes immaterial, then, to determine whether or not the testimony of D. R. Dreyfus to the effect that it was the custom of his firm to make an investigation of the financial standing of proposed customers was competent, for such testimony could not in any event prejudice the rights of the plaintiff, since the general custom in this regard was proved, and the proof of the particular custom could amount to no more than the following of the general custom. As we have already seen, it was the theory of the plaintiff that the transaction between him and M. Dreyfus for the sale of the candies was a completed sale. On the other hand, it was the theory of the defendant that the transaction in question was not a contract of sale and purchase, but was a mere order given for goods to be shipped after it was first accepted by the firm. The respective theories of the parties were fully-and fairly submitted to the jury, and, as we have already stated, we think there was some testimony of a substantial character to support the finding of the jury. The judgment will therefore be affirmed.