Opinion by
JONES, C.
This suit was instituted by appellees in the district court of Garfield county against the appellant* to go-cover the sum of $4,574.05 as damages for breach of a certain contract. The record discloses that appellees Morris, Hanby, and Denny, were partners doing business as the Berryville Canning C( mpany, and that the appellant, the Ranney-Davis Mercantile Company, a corporation, doing a general wholesale mercantile business with a branch house in the city of Enid, and that on the 10th day of May, 1920, the appellees sold 3,000 cases of tomatoes to the appellants as provided in the following contract:
“Contract.
“Berryville Canning Co., Berryville, Ark., hereby sell: Ranney-Davis Mercantile Company, Arkansas City, Kans. hereby buy 3,-000 cases No. 2 Standard Tomatoes, pack of 1920, at $1.20 iter dozen, FOB Factory.
“Guaranteed to conform (o Food and Drug Act of June, 1906, commonly known as the National Pure Food Law.
“All swells, and lea/ks guaranteed six months from date of invoice. Buyer to hold swells and leaks sixty days for disposition.
“Labels: Privilege buyer’s labels $1.50 per M. label allowance. If buyer’s labels are used, buyer to forward labels to seller’s factory, charges prepaid.
“It. is mutually agreed that any and all differences arising from this sale shall be settled by arbitration in the manner agreed upon by the National Ganners Association and the National Wholesale Grocers Association.
“Shipment to be made during or immediately after canning season 1920.
“Terms: Cash less
lVs%,
Sight Draft attached to bill of lading payable on arrival and inspection of goods.
“Seiler agrees to contract sulfi 1011! acre age to cover above sale, lmt in case of crop failure or other causes beyond seller’s control seller will make prorate delivery on this contract.
“This contract null and void should the plant of either party be destroyed by fire or the elements.
“This contract is written in triplicate.’
“Accepted: Berryville Canning Co.
“Per Tom Morris, Seller.
“Accepted: The Ranney-Davis Mercantile Co.
“Per E. R. Smith, Buyer..
“Dated at Berryville, Ark., May 10, 1920.
“McManirs-Heryer Brokerage Co., Brokers.”
The appellees packed, wrapped and shipped said tomatoes, consisting of three carloads, to the appellants, and placed same on their trackage adjacent to their place of business in the city of Enid, Okla., according to the terms of the contract. The appellant
reiused to receive the shipment, and avers in its answer to plaintiffs’ petition that the tomatoes were not standard No. 2 tomatoes, and that there were many cans of tomatoes in said shipment which it denominated as flippers and swells, and that the cans in which they were packed were not properly sealed, and were rusty and not .-.ucli cans as were contemplated and provided for in tl.e contract.
Plaintiffs urge in their petition that the defendant is indebted to them in the sum of $7,293.75, the purchase price of the tomatoes, and that the tomatoes at the time of the institution of the suit were not worth to exceed 65 cts. per dozen on the No. 2 tomatoes, and the defendant’s failure to receive and pay for the No. 2 tomatoes resulted in dam-' ages to these plaintiffs in the sum of $3,!W, and they sustained a loss on the No. 10 tomatoes in said shipment of $93.75. That by reason of defendant’s failure to accept the shipment, plaintiffs were required to pay the freight, amounting to $717.02, and de-murrage in the sum of $80.53, and storage in the sum of $131.59, and expense for a member of the company from Berryville, Ark., to Enid, Okla., in connection with this matter, $45; and for removing the labels of the defendants from the cans containing said tomatoes in the sum of $300, aggregating a damage to plaintiffs in the sum of $1,574.05.
The matter was tried to a jury on November 4, 1921, and resulted in a verdict in favor of the plaintiffs against the defendant for $4,303.86. Judgment was rendered by the court in conformity to same, motion for a new tried was filed and duly overruled, from which order and judgment of the court the defendant appeals.
Appellant sets forth various assignments of error wherein it assigns as error the fact that the court permitted plaintiffs in the trial of the case to demonstate to the jury how flippers and swells were produced, and also permitted a number of cans to be opened and the jury to inspect same for the purpose of determining the grade of tomatoes. Appellant further complained of the instructions given by the court, and the court’s action in refusing to give certain requested instructions, but the principal contentions made are that the tomatoes did not come up to the terms of the contract, and were not standard No. 2 tomatoes, and that it was entitled to rescind the contract on account of the large percentage of cans containing rust, swells, leaks, and flippers in said shipment of 3,000 cases.
As to the first proposition urged, to the effect that said tomatoes were not standard No. 2 tomatoes, this is purely a question of fact, and in our judgment, under the testimony disclosed by the record, there was abundant evidence to justify the jury in arriving at the conclusion that the tomatoes were standard tomatoes and such as were contemplated under me contract..
The second proposition, wherein appellant contends that it is entitled to rescind by reason of the fact that some of the cans in the shipment containing the tomatoes were what is termed in the commercial world as flippers and swells, with which contention we cannot agree, in view of the fact that the contract under which the sale was made contains the following provisions:
“That all swells and leaks guaranteed six months from date of invoice, buyer to hold swells and leaks sixty days for disposition.”
And the evidence showed that the appel-lees herein were at all times willing to abide by this provision, and to make good all faulty cans by reason of the defects complained of, and furthermore the preponderance of the evidence as disclosed by the record is in favor of the appellees, showing that comparatively few cans were what is known as swells or flippers, and the evidence also discloses that those cans which did contain such defect's were not faulty so far as the grade of tomatoes was concerned.
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Opinion by
JONES, C.
This suit was instituted by appellees in the district court of Garfield county against the appellant* to go-cover the sum of $4,574.05 as damages for breach of a certain contract. The record discloses that appellees Morris, Hanby, and Denny, were partners doing business as the Berryville Canning C( mpany, and that the appellant, the Ranney-Davis Mercantile Company, a corporation, doing a general wholesale mercantile business with a branch house in the city of Enid, and that on the 10th day of May, 1920, the appellees sold 3,000 cases of tomatoes to the appellants as provided in the following contract:
“Contract.
“Berryville Canning Co., Berryville, Ark., hereby sell: Ranney-Davis Mercantile Company, Arkansas City, Kans. hereby buy 3,-000 cases No. 2 Standard Tomatoes, pack of 1920, at $1.20 iter dozen, FOB Factory.
“Guaranteed to conform (o Food and Drug Act of June, 1906, commonly known as the National Pure Food Law.
“All swells, and lea/ks guaranteed six months from date of invoice. Buyer to hold swells and leaks sixty days for disposition.
“Labels: Privilege buyer’s labels $1.50 per M. label allowance. If buyer’s labels are used, buyer to forward labels to seller’s factory, charges prepaid.
“It. is mutually agreed that any and all differences arising from this sale shall be settled by arbitration in the manner agreed upon by the National Ganners Association and the National Wholesale Grocers Association.
“Shipment to be made during or immediately after canning season 1920.
“Terms: Cash less
lVs%,
Sight Draft attached to bill of lading payable on arrival and inspection of goods.
“Seiler agrees to contract sulfi 1011! acre age to cover above sale, lmt in case of crop failure or other causes beyond seller’s control seller will make prorate delivery on this contract.
“This contract null and void should the plant of either party be destroyed by fire or the elements.
“This contract is written in triplicate.’
“Accepted: Berryville Canning Co.
“Per Tom Morris, Seller.
“Accepted: The Ranney-Davis Mercantile Co.
“Per E. R. Smith, Buyer..
“Dated at Berryville, Ark., May 10, 1920.
“McManirs-Heryer Brokerage Co., Brokers.”
The appellees packed, wrapped and shipped said tomatoes, consisting of three carloads, to the appellants, and placed same on their trackage adjacent to their place of business in the city of Enid, Okla., according to the terms of the contract. The appellant
reiused to receive the shipment, and avers in its answer to plaintiffs’ petition that the tomatoes were not standard No. 2 tomatoes, and that there were many cans of tomatoes in said shipment which it denominated as flippers and swells, and that the cans in which they were packed were not properly sealed, and were rusty and not .-.ucli cans as were contemplated and provided for in tl.e contract.
Plaintiffs urge in their petition that the defendant is indebted to them in the sum of $7,293.75, the purchase price of the tomatoes, and that the tomatoes at the time of the institution of the suit were not worth to exceed 65 cts. per dozen on the No. 2 tomatoes, and the defendant’s failure to receive and pay for the No. 2 tomatoes resulted in dam-' ages to these plaintiffs in the sum of $3,!W, and they sustained a loss on the No. 10 tomatoes in said shipment of $93.75. That by reason of defendant’s failure to accept the shipment, plaintiffs were required to pay the freight, amounting to $717.02, and de-murrage in the sum of $80.53, and storage in the sum of $131.59, and expense for a member of the company from Berryville, Ark., to Enid, Okla., in connection with this matter, $45; and for removing the labels of the defendants from the cans containing said tomatoes in the sum of $300, aggregating a damage to plaintiffs in the sum of $1,574.05.
The matter was tried to a jury on November 4, 1921, and resulted in a verdict in favor of the plaintiffs against the defendant for $4,303.86. Judgment was rendered by the court in conformity to same, motion for a new tried was filed and duly overruled, from which order and judgment of the court the defendant appeals.
Appellant sets forth various assignments of error wherein it assigns as error the fact that the court permitted plaintiffs in the trial of the case to demonstate to the jury how flippers and swells were produced, and also permitted a number of cans to be opened and the jury to inspect same for the purpose of determining the grade of tomatoes. Appellant further complained of the instructions given by the court, and the court’s action in refusing to give certain requested instructions, but the principal contentions made are that the tomatoes did not come up to the terms of the contract, and were not standard No. 2 tomatoes, and that it was entitled to rescind the contract on account of the large percentage of cans containing rust, swells, leaks, and flippers in said shipment of 3,000 cases.
As to the first proposition urged, to the effect that said tomatoes were not standard No. 2 tomatoes, this is purely a question of fact, and in our judgment, under the testimony disclosed by the record, there was abundant evidence to justify the jury in arriving at the conclusion that the tomatoes were standard tomatoes and such as were contemplated under me contract..
The second proposition, wherein appellant contends that it is entitled to rescind by reason of the fact that some of the cans in the shipment containing the tomatoes were what is termed in the commercial world as flippers and swells, with which contention we cannot agree, in view of the fact that the contract under which the sale was made contains the following provisions:
“That all swells and leaks guaranteed six months from date of invoice, buyer to hold swells and leaks sixty days for disposition.”
And the evidence showed that the appel-lees herein were at all times willing to abide by this provision, and to make good all faulty cans by reason of the defects complained of, and furthermore the preponderance of the evidence as disclosed by the record is in favor of the appellees, showing that comparatively few cans were what is known as swells or flippers, and the evidence also discloses that those cans which did contain such defect's were not faulty so far as the grade of tomatoes was concerned. The evidence also shows that the tomatoes which come up to the standard in every respect might be contained in cans denominated swells or flippers as was demonstrated before the jury, and well filled cans of toma'toes may be caused to bulge or swell at the ends, which produces a condition known as a swell or flipper by slight pressure being brought to bear on the side of the cans, and that the same results may be obtained in well filled cans by reason of the normal heat of summer: consequently, we find no merit in the contention of the appellant, and the proof wholly fails to support its contention. .Appellant cites numeous authorities in support of its contention. Among others is that of the case of Ruhl Clothing Co. v. Singleton (Mo.) 143 S. W. 529, which is a case where the seller stuffed the order, the purchaser refused to take that which he had not ordered, but agreed to take that which he had ordered, and later on the purchaser agreed to that which he had not ordered, hence became liable for the entire shipment. Also it cites the case of Boyd v. Second Hand Supply Company (Ariz.) 123 Pac. 619, which is a case where an engine and pump were purchased. The engine was shipped without the pump, the purchaser refused to receive the engine, and the court held that he had a right to do so and that he could not be
forced to take a portion of the order without all, and the case of William Hanley Company v. Combs (Ore.) 119 Pac. 333, is where the seller contracted to deliver 600 head of cattle of a certain age and grade, 600 were delivered, but only 225 accepted by the purchaser as coming up to the agreement. The court held that before the plaintiff could recover the purchase price of the cattle he must deliver the number of the proper age and grade.
We have examined a number of other authorities, but they, like those •heretofore referred to, have no application to the case before us.
The third proposition urged is that the court erred in the instructions given and in the refusing of certain instructions.
■ We have carefully examined the instructions requested and the instructions given, finding that the court’s instructions, as given, contain a very comprehensive statement of the facts and a correct application af law to the same. The only error that we discover ig in the court’s instructions of the measure of damages wherein he fails to include as an element of damages the expense incurred by one of the appellees in making a trip to Enid in connection with this matter and the item of $300 expense incurred by appellees in changing the iabels on the cans, containing said tomatoes, same having been labeled according to the terms of the agreement of sale in labels especially adapted for the benefit of the appellant herein. The' jury, however, seems to have taken into consideration these items in arriving at their verdict, and in order to avoid the possibility pf error, appellees file a remittitur in the sum of $452, which is amply sufficient to cover any technical error that may have been committed in this particular. The facts are that tomatoes had declined in price from $1.20 per dozen to about 65 cts. per dozen from the date of the execution of the contract, and the date of delivery, and while this results in an unfortunate condition so far as the appellant is concerned, it is not such a condition as men are entitled to be relieved of, and courts have no power or right to grant any relief. Finding no error in the record, we recommend that the judgment be affirmed.
By the Court: It is so ordered.