121 Ark. 150 | Ark. | 1915
Lead Opinion
(after stating the facts). Dan Daniels was inspector of hay for the Little Rock market, and, over the objection of the defendant, was permitted to testify that, in Little Rock, “very choice hay” means strictly choice hay; that in alfalfa hay if would mean that the hay must all be extra good quality in color and in texture and without a mixture of other grasses and must have a fine stem, and that “good quality” would be about No. 1.
He was asked the question, “What would ‘good quality’ mean?” and answered, “Well, .that would be about a No. 1,1 should judge. No. 1 alfalfa would be coarser stem, a dull green in color, but must toe sound and pure, not mixed with other grasses.”
The court erred in admitting this testimony. Allen’s letter of the 9th of January, 1912, .stated that he had just received a telegram from his manager at the ranch in Nebraska, stating that he had a. certain number of tons of the first and second cutting, good quality, and of the third cutting containing a little grass, good quality. It will be noted that Allen in his letter is quoting from the telegram from his manager. The telegram and the letter show that the words “good quality” are not used in the sense that grade No. 1 is used in the Little Rock market. Daniels testified that alfalfa hay to grade No. 1 must toe unmixed with other grasses. The ranch manager in his telegram referred to the third cutting as containing a little grass and still .spoke of it as hay of good quality. So far as the record .discloses, the ranch manager had never toeen to Little Rook and knew nothing whatever atoout the inspection .and grading of hay there.
We do not think the words were used in .any sense other than the ordinary meaning of “good quality” and on that account oral testimony was not (admissible to explain the meaning of the words used as was the case in Paepcke-Leicht Lumber Co. v. Talley, 106 Ark. 400.
In the application of the rule it is evident that the letters did not constitute a binding contract between the parties. The letter of January 9, 1912, written by Allen to Nothern, contained a proposal to Nothern to sell him his entire stock of hay upon terms and conditions therein stated .and set out.. This letter called for an acceptance on the part of the plaintiff of the terms and conditions therein stated. The letter of January 11, 1912, written by the plaintiff, ¡did not contain .an unqualified acceptance of the offer of Allen. It contained other terms and conditions than those imposed toy Allen in his letter to him. For instance, Allen’s letter contained the stipulation that the hay should be moved before the first of March. The letter of Nothern did not accept this condition. He stated that he thought he could comply with that condition but asked for more time. So, in this respect there was no unconditional acceptance of the terms imposed by Allen.
Again, as we have .already indicated, Allen proposed to sell Nothern alfalfa hay designated toy Ms ranch foreman as hay of “good quality” and .some of it was described as having a little grass in it. Nothern did not accept this proposal, but, to the contrary, told Allen to be careful to see that his ranch foreman did not ship out ■any hay that would not grade No. 1 and better. So it will be seen that up to tMs time the correspondence amounts to no more than proposals by the one and oounter proposals toy the other. Allen ,says that he was a traveling man and did not receive the letter of January 11, 1912, until about the 27th -or 28th of the month after his return to Little Bock. He stated that he at once called Nothern over the telephone and told him that the letter was different from the proposals he had made him and that he would not accept the contract proposed by Nothern. Nothern denied that Allen called him over the telephone or rejected the terms of his proposal.
It can not be said that Allen, as a matter of law, accepted .'the terms of the proposals by permitting the hay to be shipped to Nothern. The record shows- that the ranch foreman -shipped some ¡hay to Nothern in December, 1911; that early in January Nothern wrote to him about further shipments of hay, and so far as the record discloses these shipments were made by the foreman pursuant to the letters written him by Nothern from time to time and not in pursuance of any contract made between Nothern and Allen.
According to the testimony of Allen the record does not show that he knew that Ms foreman was shipping out hay under the alleged contract between him and Nothern. On the other hand, Nothern introduced testimony tending to -show that the hay was shipped out pursuant to the terms of Nothern’s letter of January 11.
We do not deem it necessary to set out the instructions of the court. The jury were permitted to find that the letters between the parties constituted a valid and binding contract. This was error. F-or the reasons already .stated, the letters in themselves did not constitute a binding contract between the parties. There was a disputed question of fact as to whether Allen accepted the new terms imposed by Nothern in Ms letter of January 11, 1912, by not objecting to them, and by allowing hay to be shipped, or whether he objected to them as soon as he received the letter as testified to by himself.
For the errors indicated in the opinion the judgment must be reversed and the cause remanded for a new trial.
Rehearing
OPINION ON REHEARING.
In their brief on rehearing, counsel for appellee insist that the court erred in stating in its original opinion that the jury was permitted to find that the letters between the parties constituted a valid and binding contract. We have again examined the instructions'but can not agree with counsel. We are clearly of the opinion that under instruction No. 1 given by the court the jury might find a contract from the letters between the parties.
It is also suggested by counsel that we overlooked instruction No. 6, asked by appellant, but in this they are mistaken. We carefully considered instruction No. 6, asked by appellant, and are of the opinion that it contained a clear and concise statement of the law as applicable to the facts, in this case. Allen in his letter of January 9, 1912, made a proposal to Nothern. Nothern replied to that letter by one under date of January 11,1912. His reply was not an absolute acceptance of the terms of Allen’s letter but imposed new terms and conditions. There was a disputed question of fact between the parties as to whether or not Allen accepted the new proposal made by Nothern. This question of fact was properly submitted to the jury in instruction No. 6, as asked by appellant. The court should have given the instruction as requested but instead modified the instruction in such a way as to confuse and mislead the jury. If the court had entertained the same view of the ’law as was entertained by counsel for appellant it would, no doubt, have given the instruction as asked by the .appellant and would not have attempted to modify it.
We did not set out the instructions in our former opinion and do not do so now. We think we have clearly pointed out the issue of fact that is to be .submitted to the jury upon a retrial of the case and no useful purpose could be .served by setting out the instructions in full in this opinion.
The letters of the parties state that the hay was sold f. o. b. Cozad, Nebraska, and named that place ias the point of delivery. Cozad was a small place 'and the price of hay there was dependent upon the price of hay in Little Rock and other available markets, so that in determining 'the market value of hay in Cozad it was proper to consider the market price of hay ¡at Little Rock with the freight added. St. L. S. W. Ry. Co. v. Kilberry, 83 Ark. 87; Kansas City Southern Ry. Co. v. Mabry, 112 Ark. 110.
The motion fot rehearing will be denied.