ARK.] FAIR STORE No. 23 v. DENISON. 603 FAIR STORE No. 23 v. DENISON. Opinion delivered April 20, 1925. 1. SALES—SUFFICIENCY OF EVIDENCE.—Evidence held to sustain a finding for plaintiff in an action for goods and merchandise alleged to have been sold and shipped to defendant. 2. SALES—LOSS OF GOODS.—Where goods are shipped by a common carrier pursuant to the buyer's order, the sale is complete, and any subsequent loss or injury would fall on the consignee.
604 FAIR STORE No. 23 v. DENISON. [168 3. APPEAL AND ERROR-DEFETISE NOT EmsEn RELow.—In an action for goods sold, defendant cannot for the first time on appeal make the defense that the purchase was within the statute of frauds. FRADDS, STATUTES OF-DEFENSE NOT RAISED BY ANSWER WHEN.--: Though a complaint for the price of goods sold, by not alleging the contract to be in writing, in effect pleaded an oral contract, an answer which neither denied the contract nor specially pleaded the statute of frauds did not raise the question that , • the contract was within the statute. . Appeal from Conway . Circuit Court ; J. T. Bullock, Judge; affirmed. Strait ce Strait, for appellant. Edward Gordon, for appellee. • MCCULLocH, C. J. This is a suit by appellee against appellant on' account for goods and merchandise sold and shipped to the latter. The case was tried .before a jury, and the verdict was in favor of appellee for the amount of the/account. • Appellee is engaged in the wholesale mercantile busi-. ness it St. •Louis, and appellant operating a store . at Morrilton. The account is for the price of a case of dress-goods, known as percale. It is•undisputed that appellant ordered the goods from appellee 'through the latter's traveling salesman, but it . does not appear that •there was any written order signed by appellant. According to the te§timony adduced by appellee, the - case -of goods was shipped 'by common carrier, addressed to appellant at Morrilton, but there is a conflict in the tes,- timony as to whether the goods were actually received by appellant. The testimony introduced by appellee tends to show that the case of goods was delivered to a dray-man employed by appellant and authorized to receive the same, and that the drayman paid the freight. Appellant's manager of the store at Morrilton testified that the Oase of goods was never received, and the. court submitted the case to the jury on the sole issue as to whether the case of goods "was shipped to Morrilton and arrived in Morrilion," and, as above stated, the verdict was in favor of appellee.
ARK.] 'FAIR STORE Nb. 23 v. DENISON. 605 • The eVidence was sufficient, to sustain the finding.of the jury on the issue submitted. If the goods were shipped by common carrier pursuant -to aPpellant's order, then the sale was complete, and any loss or injury . to the goods would fall on the consignee. B•rton & Townsend v. Baird & Bright, 44 Ark. 556. The instruction given by the court was too favorable to appellant in stating that the jury must find that the goods arrived in Morrilton. It is contended,.however, that there was no evidence of a written order or other written agreement with respect to the Purchase of the goods, and that the purchase falls within the statute of frauds, but that question is raised herCfOr the first time, which is too late. There was no plea of the statute of frauds. The language of the complaint is that "the Fair Store No. 23 of Morrilton, Arkansas, a corporation, is duly indebted to the plaintiff as consideration for goods, wares and merchandise, as shoWn by itemized account attached hereto, in the sum of $295.24." The answer of appellant (omitting caption and prayer) reads as follows : "Denies that the Fair Store No. 23 of Morrilton, Arkansas, is duly indebted to the plaintiff as consideration for goods, wares and merchandise, as shown .by itemized account attached hereto, in the' sUm of $295.24. Denies that the said indebtedness, is . wholly past due and remains unpaid. Denies that said defendant has no just defense, set-off or counterclaim thereto, and denies that plaintiff is entitled to judgment for •said account." • Appellant relies on decisions holding ' that a denial of allegations as to the existence of a contract constitutes a sufficient plea of the statute of frauds. Stanford V. Sanger,141 Ark. 458. It will be observed that appellant's answer neither denies the , contract of purchase nor specially pleads the statute of frauds, therefore the answer was not sufficient to raise the question of the contract 'being within the statute. The effect of the -complaint.was to plead an oral contract, there being n.o allega, tions with respect to a contract in writing. Izard v. Con: neeticut Fire Ins. Co., 1.28 Ark. 433. So, in order to
606 [168 plead the statute of frauds 'as a defense, it is essential that there either be a denial that there Was a valid . contract, or a special plea of the statute. • • Judgment affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.