Abboud v. Arkansas Power & Light Company
| Decision Date | 10 November 1941 |
| Docket Number | 4-6466 |
| Citation | 155 S.W.2d 584,203 Ark. 6 |
| Parties | ABBOUD v. ARKANSAS POWER & LIGHT COMPANY |
| Court | Arkansas Supreme Court |
Appeal from Yell Circuit Court, Danville District; J. B. Ward, Judge on exchange; reversed.
Judgment reversed, and cause remanded.
Caviness & George, Ferguson & Madole and Caudle & White, for appellant.
House Moses & Holmes, Hays, Wait & Williams, W. P. Strait and J. M. Smallwood, for appellee.
This suit was brought by appellant against appellee in the circuit court of Yell county, Danville district, to recover damages in the sum of $ 5,320 on account of an alleged breach of contract on the part of appellee "to furnish efficient and adequate electric service to efficiently operate a commercial chicken hatching plant in Danville, Arkansas," of the kind and type installed and equipped by her. In her complaint appellant alleged that she installed and equipped the plant on the advice of B. C. Fowles, manager of appellee corporation, and his assurance that appellee corporation would furnish efficient and adequate electric service to efficiently operate the hatchery during the ensuing hatching season; that after the plant was installed and ready for operation appellee, through its said manager, ordered and directed the said equipment or plant be connected with the distribution system of appellee and supervised the manner in which the connection was made and thereafter began to furnish electrical current for the operation of the machines and equipment at the agreed price of three cents per kilowatt hour; that in reliance upon the contract appellant filled and emptied the hatching machines with eggs costing her four cents each in the total number of 95,000 at a total cost of $ 3,800 during the season beginning January 7, 1937, and ending March 9, 1937; that had the electrical current furnished been adequate, efficient and sufficient she would have made a net profit of $ 1,400 during the season; that notwithstanding the aforesaid contract and agreement appellee corporation neglected, failed and refused to furnish adequate, efficient and sufficient electrical service, setting out the dates and the hours appellee failed to furnish sufficient current and alleging that as a direct and proximate result of the failure and refusal of the appellee corporation to comply with the terms of its contract and agreement all the eggs were spoiled and became valueless, and that no commercial chicks were produced therefrom and that she sustained $ 3,800 damage on account of the purchase of eggs, an additional sum of $ 120 that she paid appellee corporation for service during the period of incubation, and that she lost $ 1,400 in profits that she would not have lost had the current and service contracted for been furnished, and that she sustained a total aggregate damage in the sum of $ 5,320; that all of the damage was the direct and proximate result, failure and refusal of appellee corporation to comply with the contract as aforesaid.
Appellee corporation filed an answer denying each and every material allegation set forth in the complaint of appellant except the allegations specifically admitted. They consisted of allegations that appellant was engaged in the operation of a commercial hatchery and that appellee was a domestic corporation and so forth and so on. In the answer it was denied that B. C. Fowles was general agent or that he had authority, actual or apparent, to enter into the contract alleged or that he induced appellant to install the character of machinery and kind of plant alleged. It was denied that appellant had sustained any damages on account of appellee's failure to furnish efficient and adequate electrical service to efficiently operate the equipment for the ensuing hatching season.
The cause was submitted and at the conclusion of appellant's testimony the court instructed the following verdict:
A motion for a new trial was filed and overruled over appellant's objection and a judgment was rendered dismissing her complaint, from which is this appeal.
Appellant introduced testimony tending to sustain all of the allegations of her complaint. So in taking the case away from the jury and instructing a verdict the court decided questions of fact according to his interpretation of the allegations of the complaint and the evidence in the case. In other words, he found that B. C. Fowles was the manager of the company and that he made a contract with appellant to furnish continuous, uninterrupted service to operate her hatchery, but declared as a matter of law that notwithstanding the fact that B. C. Fowles was the general agent of appellee he had no right to make a contract and bind appellee that was impossible of performance. In other words, it is argued that he could not bind appellee upon a contract to furnish uninterrupted service where the failure to do so was caused by the acts of God, or the public enemy or interruptions in service caused by unforeseen accidents, fires, explosions, strikes, riots, governmental interference, order of any court or judge granted in any bona fide adverse legal proceedings or action, or any order of any commission or tribunal having jurisdiction in the premises, or any other act or thing reasonably beyond appellee's control, or for damages occasioned by interruptions necessary to make repairs or changes in appellee's generating, transmission or other equipment.
Appellan...
To continue reading
Request your trial
-
Richey v. Long Prairie Levee District
... ... This ... power was not fully exercised. On the contrary, the board of ... ...
-
Arkansas Power & Light Co. v. Abboud
...on an instructed verdict was reversed because jury questions were involved. 203 Ark. 6, 155 S.W.2d 584. See, also, concurring opinion at page 10 of the Reports, and at page 586 Southwestern Reporter. On retrial judgment was in favor of the plaintiff for $ 3,999. The power company has appeal......