Richter v. Vicksburg Candy Co.

Ethridge,, J.,

delivered the opinion of the court.

The appellant was plaintiff below, and filed suit against the appellee on an open account for’seven hundred seventy-one dollars and thirty-seven cents, duly verified by affidavit. The account is based upon an order signed by the appellee given to the traveling salesman of the appellant, which reads as follows:

“No. 175. Date, March, 18, 1919.

“RiclTter 'Manufacturing Go.: Ship to Vicksburg Candy Co., at Vicksburg, Miss. How Ship: F. 0. b. factory. Terms: 2 per cent. 10 days, 30 net. When: Soon as possible. Salesman, V. B. Fisher. Buyer—

10.000 1 lb. butter boxes about 80 lbs. per M

10.000 2 lb. butter boxes about 120 lbs. per M

3.000 3 lb. butter boxes about 160 lbs. per M

3.000 5 lb. butter boxes about 200 lbs. per M

26,000

“It is understood and agreed that shipment of this order is subject to delay, account of railroad embargoes and war-time conditions.

‘ ‘ These boxes are not guaranteed grease proof.

“Twenty-six thousand boxes, about 3,080 lbs. printed strictly sanitary for our stock at twenty-five and half cents per pound.

“Vicksburg Candy Co.,

“Per V. Cassino.”

The defendant filed a counter affidavit, in which he alleges that the account sued on is untrue and incorrect; that it is not due and owing from the defendant to the plaintiff; and that the matters and things set forth hv the defendant in its notice under its plea of the general issue in this ease are true and correct as therein set forth. The said notice under the general issue alleged that the defendant purchased from the plaintiff ten thousand one-pound wax butter boxes, ten thousand two-pound wax butter boxes, three thousand three-pound wax butter boxes, and three thousand five-pound wax butter boxes; that there were one hundred and ten packages delivered to it by the plaintiff, but that it would be unable, except at great expense, to determine if the said packages contained the quantities purchased by it; that there were two packages that had been opened, and that the defendant and a representative or agent of the railroad company counted the trays -in the said two packages, and found in one only ninety-two trays and in the other ninety-three trays; that neither of these two packages had anything whatever in the way of labels to indicate the contents of the cartons, and that, the defendant is unable to say whether the said two packages were short; that the gross weight on the bill of lading* was three thousand five hundred and sixty-one pounds, and that the entire shipment was billed by the plaintiff to the defendant at three thousand one hundred and thirty-three pounds; that the defendant emptied five or six of said cartons and weighed the empty cartons; that they weighed from six and one-half to seven pounds, that there were one hundred and ten of them. The defendant also alleged that it would show that there was nothing on any of the packages to indicate to the defendant or to its trade the quantities contained in the respective packages or cartons, as is usually the custom in the trade, and that this prevented the defendant from undertaking to sell the same with safety, unless said packages should be undone and counted, and that to do so would be costly and expensive; and1 that the packages in their present condition were unsalable and unmerchantable; that to handle the trays by undoing the packages, etc., would have depreciated their value, would have been unsanitary, and would have rendered them unsalable and unmarketable. The defendant also averred that it would show that these packages contained from two hundred and fifty to five hundred trays, that the larger trays were packed in cartons of two hundred and fifty trays each; that the trays purchased by the defendant from the plaintiff were of the larger size, and that some of the cartons contained by actual count one hundred and twenty, some one hundred and fifty, some two hundred and fifty, and others varying amounts; that there was nothing to indicate on the packages or cartons the size of the trays, although the purchase made by the defendant was of four different sizes, to-wit, one, two, three, and five pounds, respectively. That the said trays were purchased on the 18th of March, 1919, for immediate shipment, but that the shipment was not made until the 30th day of April, 1919'; that defendant is in the wholesale business, and that plaintiff’s salesman urged the defendant to take his line of trays; that plaintiff’s salesman, Mr. Fisher, sold to certain parties certain numbers of the trays for the account of defendant, and that the defendant was to have the profit on these sales to parties in the Vicksburg territory, but that, owing to the method in which the trays were packed, these orders could not be filled; that immediately upon the receipt of said shipment and the discovery of its condition the defendant notified the plaintiff that it could not handle said shipment on account of the way they were packed, and that said shipment was held subject to plaintiff’s orders; that it was agreed between Fisher, the ag'ent of plaintiff, and the defendant that the trays were to be delivered packed in cartons of two hundred and fifty trays each.

It was the contention of the plaintiff that the order above set out was the exclusive terms of the sale, and that the alleged agreement with Fisher and the defendant as to how the trays should be packed is not admissible. It is also contended by the appellant, plaintiff below, that the trays were packed in accordance with the usual custom which was to pack one- and two-pound trays, four hundred to the carton, three-pound trays, two hundred and fifty to the carton, five-pound trays, two hundred to the carton; that this method of packing was necessary, because the cartons were the same size, and to fill them would require different numbers, according; to the size of the trays. The proof for the appellant also showed that the cartons were packed at the shipping point and marked in crayon on the outside giving the number of trays, size, and weight. The proof for the appellee, defendant below, shows that many of the cartons were not marked at all to show the number of trays, size or weight; that others were so blurred that the figures could not be deciphered. The appellant also offered testimony of certain merchants at Vicksburg who handled wodden butter trays that it was the custom to pack two hundred and fifty trays to the carton in the Vicksburg territory. There was no proof by any person handling this particular line of trays as to the method of packing trays for the Vicksburg territory, nor was there any proof to show any knowledge of any such custom, if such existed, on the part of the plaintiff.

There was a verdict and judgment for the defendant.

The court refused a peremptory instruction for the plaintiff, and refused an instruction telling the jury for the plaintiff to disregard all of the testimony of the defendant- that the salesman, Fisher, told him that the g'oods would come packed two hundred and fifty trays to the box or carton. The court ga,ve the defendant an instruction :

‘ ‘ That, although you may believe from the evidence in this case that there was no understanding and agreement made by the said Fisher, on behalf of plaintiff, with defendant, to make the packages uniformly contain two hundred and fifty butter trays or boxes, still, if you believe from the evidence in this case that it was customary, in the Vicksburg territory, to pack said trays in packages of two hundred and fifty each, or that this was the standard method of packing said butter boxes or trays, then it is your sworn duty to find for the defendant.”

It is contended by the appellant that the plaintiff should have had a peremptory instruction, because the order above set out contained no stipulation with reference to the packing or the contents of the cartons with reference to the number1 and weight, and that it was not competent to admit the alleged agreement between the salesman of the plaintiff and the defendant, and that there was no dispute that the butter trays were packed in accordance with the usual method of the plaintiff at place of shipment, the order being an order f. o. b. factory. It is also contended by the appellant that the giving of the instruction above set out as to the custom in the Vicksburg territory was error, for the reason that the order was f. o. b. factory at the shipping point.

It will be noted from a. reading of the order that the order does not limit the power or authority of the salesman to solicit orders, or tl^at the order is to be approved at the office of the seller. It is clear that Fisher had-authority to make the sale, and, as there is nothing in the contract that limits his authority to solicit orders, we think it was competent for the defendant to prove his statements and agreements as to how the trays would be packed and marked, and it was a question for the jury to say from all of the proof as to whether the cartons were properly marked in accordance with the understanding and with the usages of trade in such business, and therefore that the plaintiff was not entitled to a peremptory instruction.

We think, however, it was error to give the instruction for the defendant above set out. The order was f. o. b. shipping point, and the custom existing in the Vicksburg territory in the absence of agreement would not be applicable especially, unless it was brought to the attention of the seller at the time the order was procured and accepted. In the absence of agreement to the contrary the usual method and custom at the place of delivery prevail.

As the judgment must be reversed for the error in giving- this instruction, we do not think it necessary to notice the other assignments.

Reversed and remanded.