Equitable Manufacturing Co. v. Thomasson

95 S.W. 459, 78 Ark. 240, 1906 Ark. LEXIS 277

• Court: Supreme Court of Arkansas
• Decided: March 24, 1906
• Status: Published

Opinion

McCulloch, J.

Appellant commenced this action in the circuit court of Jefferson County to recover the sum of $185 alleged to be due for merchandise sold upon a written order or contract and shipped by appellant from its place of business at Iowa City, Iowa, to appellees at Wabbaseka in Jefferson County. Appellees filed their answer, alleging that the order for the goods was delivered by one of the members of their firm to the traveling salesman of appellant upon condition that the same should be subsequently approved by the other member of the firm, who was then absent, and under an express verbal agreement with said agent that he would not forward the same to appellant until they notified him of such approval. They further allege that immediately upon the return of the member of the firm the next day he disapproved said order, and they immediately notified said agent by mail to cancel it. They asked that the cause be transferred to equity, and that the contract- be canceled.

The circuit court ordered the transfer to equity over the objection of appellant (to which exceptions were duly saved), and the chancellor rendered a decree in favor of the defendants.

The answer presented a complete defense at law. Graham v. Remmel, 76 Ark. 140; State v. Wallis, 57 Ark. 64; Ware v. Allen, 128 U. S. 590; Burke v. Dulaney, 153 U. S. 228.

This being true, it was error to transfer the cause to equity. Weaver v. Arkansas Nat. Bank, 73 Ark. 462.

Reversed and remanded with directions to transfer the cause to the circuit court for trial.