158 Ark. 145 | Ark. | 1923
(after stating the facts). In the Southern Produce Co. v. Oteri, 94 Ark. 318, it was held that, where merchandise is shipped to a retail dealer to be resold, and he has no opportunity to inspect it, there is an implied warranty that the goods were in condition to stand shipment and be in condition for resale when they arrived at destination. It was also held that the measure of damages in such cases is the difference between the price fixed by the contract and the market value of the goods in a merchantable condition at the time and place of delivery. In that case it was also held that the delivery of the goods by a seller to a common carrier, properly addressed to the. buyer, is, in effect, a delivery to the buyer, and, if any loss occurs to the goods during the carriage, it becomes the loss of the purchaser.
The present case was tried according to the principles of law laid down in that opinion, and-the only assignment of error relied upon for a reversal of the judgment in this case is that the evidence is not legally sufficient to support the verdict.
It is claimed by counsel for the plaintiff that the evidence is too indefinite, and that it does not show whether or not the defective condition of the beds was due to damage suffered by them in shipment, or whether they were defective when delivered to the carrier.
We cannot agree with counsel in this contention. The defendant bought 365 beds from the plaintiff, and, according to his testimony, all of them were in a defective condition. Between fifty and seventy-five of them were wholly worthless, and all of them were so defect tive that he had to sell them for less than cost. The beds were wrapped in excelsior, and the defendant did not know that they were damaged until they were unwrapped upon being sold. When they were unwrapped, the paint would fall off in flakes, and the iron of the beds would be rusty where the paint fell off. It is fairly inferable from this that the paint fell off because the iron was not properly cleaned before the beds were painted. Hence the jury might have found that this item of damage was not caused while the beds were in the hands of the carrier. The locks would break off of some of the beds when they Avere set up. It is inferable from the testimony that this occurred because the casting was defective.
While the defendant did not keep an itemized list of the defects on each bed, he does testify, that as many as fifty of the beds were wholly worthless, and that all of them were more or less defective, causing him to sell them at a loss. He averaged his loss at $1,500. The purchase price was $2,665.03. Of this amount he paid all but $856.81. The defendant only recovered judgment against the plaintiff for $100. Therefore we are of the opinion that, when all the circumstances are considered, the evidence is legally sufficient to support the verdict. The fact that the defendant made a claim against the railroad company does not preclude him from maintaining the present suit. The railroad company refused his claim for damages on the ground that it had not damaged the beds in the course of carriage. This was a question of fact presented by the pleadings and proof in this case, and the jury, by its verdict, has found that the damages occurred on account of the defective condition of the beds at the time they were delivered- to the carrier, and, as above stated, the evidence of the defendant supports the verdict.
The judgment will therefore be affirmed.
