{
  "id": 1447031,
  "name": "Southern Coffee Mills, Inc., v. Westfeldt Brothers",
  "name_abbreviation": "Southern Coffee Mills, Inc. v. Westfeldt Bros.",
  "decision_date": "1941-11-17",
  "docket_number": "4-6471",
  "first_page": "28",
  "last_page": "34",
  "citations": [
    {
      "type": "official",
      "cite": "203 Ark. 28"
    },
    {
      "type": "parallel",
      "cite": "155 S.W.2d 704"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [],
  "analysis": {
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    "char_count": 12123,
    "ocr_confidence": 0.58,
    "sha256": "6350bd8f545b2b8d4f14890835fa439fd128fbd3736e42ba0ae961ae617453b7",
    "simhash": "1:ee02951e01da556c",
    "word_count": 2030
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  "last_updated": "2023-07-14T23:00:45.785345+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Southern Coffee Mills, Inc., v. Westfeldt Brothers."
    ],
    "opinions": [
      {
        "text": "Griffin Smith, C. J.\nWestfeldt Brothers, a partner- . ship engaged in the wholesale coffee business at New Orleans, procured judgment against Southern Coffee Mills, Inc., of Pine Bluff, for $1,177.43. Payment of $648.54 was immediately made, but an item of $445.50, with interest, is in dispute, contention being that the trial court erred in giving an instructed verdict for the amount in controversy. This appeal questions correctness of the court\u2019s action in respect of the $445.50 item.\nAugust 29, 1939, appellees entered into a written contract to supply 600 bags of coffee of three different grades, shipment of 200 bags to be made in each of the first three months of 1940. Terms were cash, less 2 per cent, in ten days. Agreement was that upon failure of the buyer to make settlement according to contractual terms, Westfeldt Brothers had a right to resell the coffee or any part of it at public or private vendue \u201cfor account of the buyer.\u201d\nIt is appellant\u2019s contention that the jury should have been permitted to determine whether the sellers, through letters and telegrams, and by telephone conversations, prior to April 1, 1940, \u201cadvised or led the appellant to believe\u201d that the contract of August 29 would be treated as not having been breached through failure of appellee to pay. for shipments. Six contracts were alleged in the complaint.\nFebruary 16 and 28 shipments invoiced at $3,952.55 were made. Part of these obligations fell dne ten days after the 28th.\nFebruary 29, March 11, March 12, and March 19 there were requests for settlement. No reply having been received to their telegram of March 19, appellees wrote an urgent letter March 23. In the meantime (March 22) appellant had written, enclosing check for $1,400. Specifications Avere given for a car of coffee, to be shipped March 27. Seventy-seven bags were referred to as new business, while 250 bags Avere to be shipped from contract commitments. There was the statement: \u201cUpon arrival of the car Ave Avill mail check covering balance due, $2,555.30. We trust this arrangement will be satisfactory and regret very much the necessity of having to ask you to handle in this manner. \u2019 \u2019\nThis letter was replied to March 25. There Avas acknowledgment of the check, \u201c. ' . . applying in part to our four outstanding invoices.\u201d There was this further statement: \u201cWe are sorry we cailnot comply with your request for a further extension of these outstandings, as the bills in question are long overdue and we cannot reasonably give approval to the arrangements you now propose.\u201d'\nMarch 26 Nash, for appellant company, telephoned appellees. He asked that shipments be made, and promised that (presumably at once) the old bills would be paid. Appellee sent the telegram shoAvn in the footnote. March 28 appellees telephoned appellants, and shortly thereafter confirmed the conversation in a letter printed as the fifth footnote.\nMarch 28 appellant wrote, referring to the telephone conversations. The account, he said, would be taken care of' \u2018 \u2018 shortly after the first of April. \u2019 \u2019 Shipment of 400 sacks of coffee, \u201call to apply against contract,\u201d was requested.\nMarch 30 appellants replied, mentioning that the requested shipments were from contracts of August 29 and November 3, 1939. It was then said that, in conformity with previous communications, \u201c. . . we cannot make shipments of coffees under these contracts because of your not having complied with the terms thereunder, as shown by invoices enumerated below, payment of which we must insist upon. \u2019 \u2019 The invoices were those showing a balance of $2,555.30.\nApril 1 appellant wrote appellees, stating that in the circumstances it seemed nothing could be done other than that appellees should sell the coffee for appellant\u2019s account, such sale to be \u201c. . . at market price, and credit our account with the difference between contract-price and market price. \u2019 \u2019\nAppellees \u2019 reply was by letter dated April 4, in which it was said: \u201cWhile your rights [under contracts of August 29 and November 3] have- terminated, we are willing, if the matter is adjusted, to credit you with whatever market advaiice may be obtainable ... At these prices the net difference would show a gain of $189.75, and if you will send us a check for bills you now owe us, less this amount, we will agree to \u2018ring out\u2019 these trades . . . Please reply immediately by wire upon receipt of this letter.\u201d\nThe next communication was appellant\u2019s letter of April 9. Appellees, by air mail letter dated April 10, acknowledged receipt of check for $2,109.80, but returned it with the explanation that \u201c. . . we are unwilling to agree to your proposition.\u201d Photostatic copy of the check discloses the endorsement, \u201cFor account in full to date.\u201d Insistence- was that appellants owed -$2,555.30, and . . we are unwilling to renew our offer as set forth \u25a0in letter of April 4, as you did not accept the same; and the market has, in the meantime, declined. \u2019 \u2019\nApril 11, appellants wrote again, enclosing check for $2,109.80, \u201c. . . which we admit we owe you and do not want to pay any interest on this amount.\u201d\nThis check was accepted April 13. In a letter of that date appellees referred to the fact that the first check was intended by appellants to be in full of their account, but, the second check not being so marked, \u201c. . . We understand your letter to mean that we can safely cash this check without prejudicing our right to recover from you the balance of the $2,555.30, with interest, which we claim is due us. . . .\u201d\nAppellant\u2019s contention is that by reason of correspondence, telegrams, and telephone calls, it was led to believe, or understood, that the contract of August 29 would be \u201crung out;\u201d that is, the undelivered portion of the 600 bags would be sold in the open market for appellant\u2019s account, and the profit or loss charged or credited as the transaction developed.\nThere was proof that because of delay in arrival of an ocean-going vessel at New Orleans, a shortage occurred in the \u201cVictoria\u201d brand of coffee, attended by increases in price. Therefore, say appellants, when appellees, by telephone, suggested that the contract be \u201crung out,\u201d and appellants replied that the matter would be considered and appellees advised, \u201c. . . and later did notify appellees and state that it was the only thing to be done under the circumstances, then appellant had the right for this circumstance of fact to be passed upon by a jury in order to determine if such a secondary agreement did in fact exist and in order to ascertain whether the appellant company had received \u2018the fruits of the contract,\u2019 and whether the appellee company, in writing on April 4, 1940, [and in its representations as to market conditions] evidenced good faith and fair dealing.\u201d\nThe court\u2019s finding was that by undisputed proof appellant had defaulted at the time the controversy arose relative to the credit of $445.50 contended for, and \u201c. . . while an offer was made by Westfeldt Brothers to \u2018ring out\u2019 the contract at a profit of $189.75 [to appellant], this offer was not accepted.\u201d\nWe agree with the trial court. Failure by appellant to settle its account at a discount of two per cent within ten days gave appellees the right to resell the coffee for appellant\u2019s account. The contract had been breached before appellees proposed to sell at the then prevailing market price at a profit to appellants of $189.75. Appellant was not willing that this should be done.\nThe contract price on Victoria coffee was four and a half cents per pound. There is evidence that from April 1 to April 6 this brand was quoted at five and a half cents per pound; but there is also evidence of other values. Nash, who telephoned appellees, does not, by his evidence, establish a new contract, or a waiver by appellees of existing rights. His testimony is that Leonhardt, acting .for appellees, called by telephone and asked when the overdue accounts would be paid. Nash testified: \u201cI told him I would send [a check]. I don\u2019t remember exactly when\u2014sometime in the very near future, because I felt like I could. Then he wanted to know what I was going to do about those contracts. ... I said, \u2018well, I will have to think the matter over, and I will write you right away and let you know what I- can do about it\u2019.\n. . . That -is about all that was said in that conversation over the telephone.\u201d\nA summary of transactions is this : Appellants were in default April 1, before prices advanced to a point where undelivered portions of the Victoria purchases could be resold for a profit. The contract was executory, title to the property remaining in appellees. Refusal by appellees to make additional shipments constituted a rescission they had a right to declare. Appellant did not want the coffee sold. This is evidenced by its insistance that shipments be continued. It is conceded that the item of $445.50 is due unless offset by profits appellees are presumed to have realized from sales not shown to have been made. Expresed differently, appellees are asked to pay $445.50 because they declined to perform a contract appellant had breached. The right of resale expressed in the contract is in the nature of an option available to the sellers. More than four months before any deliveries were to be made, and more than seven months before the last 200 bags were to be shipped, the sellers obligated themselves to deliver coffee at a fixed price; hence, .their own commitments in the way of purchases had to be made. It was not only necessary that they should know the coffee would be taken, but it was likewise essential that payment be made at the times specified. The right of resale was retained, to be exercised if the buyer should fail to make settlement for delivered portions. The only question is whether appellants had a right, after default, to compel appellees to sell for their account. Since terms of the contract merely gave appellees the right to sell, but did not obligate them to do so, the trial court correctly instructed the jury to return a verdict for the plaintiff.\nAffirmed.\nAugust 29, 1939; November 3, 1939; December 21, 1939; January 31, 1940 (two contracts); March 15, 1940.\nAfter deducting $1,400 from $3,952.55 the difference was $2,-552.55. The balance of $2,555.30 referred to in the letter includes a \u201cnet cash item\u201d of $2.75.\nThere was the further statement: \u201cAll of our transactions are quite clearly understood to be on a ten-day discount basis; and, accordingly, we thought you would handle the shipments covered by our invoices of February 16 and 28.\u201d\n\u201cUnder circumstances sorry we cannot make shipment as suggested your telephone conversation.\u201d\n\u201cConfirming opr telephone conversation of today with regard to the balance due on our unpaid invoices, we regret the necessity for immediate payment and would further insist upon settlement this week, or not later than April 1. As we told you, we also had in mind the other bookings, consisting for the most part of deliveries that are now delinquent, and we must have some word from you as you mentioned would be given us in the next day or two about all these matters.\u201d\nRegarding the requested shipment it was said: \u201cPlease ship these coffees by Tennessee Bell next sailing, draft bill of lading attached, and draw through the Simmons National Bank, Pine Bluff.\u201d\nThe letter contained this paragraph: \u201cThe contract price on Santos coffee seems to be about the same as today\u2019s market. However, the 450 bags [of] Victoria %s [were] bought at %c per pound under today\u2019s market, and we should have credit for approximately $450.\u201d It was then said: \u201cWe shall appreciate your handling in this manner, and when we receive statement showing this credit, we shall forward check to you.\u201d\nThe letter of April 4th, referred to, was the one in which it was suggested by appellees that the contract be liquidated by allowing appellants a credit of $189.75.",
        "type": "majority",
        "author": "Griffin Smith, C. J."
      }
    ],
    "attorneys": [
      "Roioell, Rowell & Dickey, for appellant.",
      "Bridges, Bridges & Young and Henry W .\u25a0 Gregory, Jr., for appellee."
    ],
    "corrections": "",
    "head_matter": "Southern Coffee Mills, Inc., v. Westfeldt Brothers.\n4-6471\n155 S. W. 2d 704\nOpinion delivered November 17, 1941.\nRoioell, Rowell & Dickey, for appellant.\nBridges, Bridges & Young and Henry W .\u25a0 Gregory, Jr., for appellee."
  },
  "file_name": "0028-01",
  "first_page_order": 46,
  "last_page_order": 52
}