#### May & Ellis Company v. Farmers Union Mercantile Company.

Opinion delivered November 27, 1916.

Evidence — contract for shipment of freight — proof—invoice.— Appellee, having contracted to purchase certain goods from appellant, refused to pay for same on account of certain alleged shortages in the shipment. Complaint of the shortage was not made until thirty days after receipt of the goods. Held, testimony showing that the invoice recited that complaint must be made within ten days, was inadmissible in an action to recover on the contract, since the invoice was not evidence of the terms of the contract between the parties.

Appeal from Lafayette Circuit Court; Geo. R. Haynie, Judge;

affirmed.

D. L. King, for appellant.

1. The court erred in refusing to permit appellant to read the deposition of S. R. Wood. Kirby’s Digest, § 3190; 75 Ark. 422.

2. No objection to the bill was made until after ten days. 80 Ark. 438; 1 Rui. C. L. 213.

Hart, J.

Appellant sold to appellee a bill of merchandise and sued appellee to recover the balance alleged to be due. Appellee admitted that it bought the bill of goods from appellant, but alleged that appellant had not shipped certain articles of the value of $130.34, and refused to pay for the items which it claims were not shipped.

The testimony on the part of appellee tended to show that on account of a change in its business, the goods were not taken out of the box in which they were shipped until about a month after their receipt, and that for this reason the shortage was not discovered. As soon as the shortage was discovered, appellee gave to appellant notice thereof. This was substantially the same testimony as that introduced on the former trial of the case, when the court directed a verdict in favor of appellee. The judgment was reversed on that account. See May & Ellis Co. v. Farmers Union Mercantile Co., 120 Ark. 316, 179 S. W. 490. Upon a retrial of *122the ease under proper instructions from the court, the jury returned a verdict in favor of appellee, and the case is here on appeal.

The only grounds of reversal relied upon by appellant is that the court erred in excluding certain testimony from the jury. Appellant offered to prove by one of its officers that it sent an invoice of the shipment to appellee, and that there was printed on it the following, “All claims or any objections to this bill must be made within ten days.” Appellee’s own testimony showed that the alleged shortage was not discovered until about a month after the goods were received, and that no objection to the bill was made until that time. The court did not err in excluding the testimony. The invoice was not the contract of sale between the parties. The contract of sale, had been made before that time. The invoice was only a list of the goods shipped with the prices set opposite each item. Therefore, the judgment ■ will be affirmed.