Abel of Ark., Inc. v. Richards

• Decision Date: 18 March 1963
• Docket Number: No. 5-2945,5-2945
• Parties: ABEL OF ARKANSAS, INC., Appellant, v. Mike RICHARDS, Appellee.
• Court: Arkansas Supreme Court

Page 705

365 S.W.2d 705

236 Ark. 281

ABEL OF ARKANSAS, INC., Appellant, v. Mike RICHARDS, Appellee.

No. 5-2945.

Supreme Court of Arkansas.

March 18, 1963.

Milham & Cummins, Benton, for appellant.

Ben M. McCray, Benton, for appellee.

HARRIS, Chief Justice.

Appellant, Abel of Arkansas, Inc., is an Arkansas corporation engaged in the business of processing sand and gravel into aggregate for construction use, and its plant is located on the Saline River near Benton. Appellee, Mike Richards, is a resident of Benton engaged in contracting, and hauling gravel and other products. On August 27, 1960, appellant and appellee entered into a written contract, whereby the company agreed to pay Richards 'the sum of 55 cents per cubic yard of raw gravel and aggregate taken from the Airport lands and removed and placed on the grounds in the plant of Abel;' appellant also agreed to pay to Richards an additional sum of 10 cents per cubic yard for an easement across Richards' lands. ¹ Richards agreed to 'put at least 500 cubic yards of aggregate in the plant per day,' except Sundays, and unless prevented by high water. Abel agreed to pay Richards for the gravel at the time of sale, or collection, but not later than 60 days after the sale. The contract was to run for one year.

On February 1, 1962, appellant instituted its complaint against Richards alleging that the latter had breached the contract by failing to deliver the 500 cubic yards per day, and that the company had been damaged in the sum of $42,753.50. Judgment was sought in that amount. Following the filing of a demurrer by appellee, a substituted complaint was filed by appellant, seeking identical relief, but specifically setting up the manner in which the figure of $42,753.50 ² had been reached. Richards answered with a general denial, and filed his cross complaint against appellant seeking judgment in the sum of $5,825.45. It was alleged that no payments had been made to appellee since February 28, 1961, though appellant had sold a substantial amount of gravel since that time. Judgment was sought for alleged amounts due because of such sales, and the balance of appellee's claim was predicated upon alleged rent due from the company for the use of certain equipment belonging to Richards, and for alleged conversion of, and damage to, other equipment owned by appellee. After the filing of other pleadings and interrogatories, the cause proceeded to trial, and the jury returned a verdict for Richards on his cross complaint in the sum of $6,712.00. The amount was reduced by the court to $5,825.45, inasmuch as Richards had only sought that sum in the cross complaint. From the judgment entered by the court in the last amount, appellant brings this appeal. Several points are urged for reversal which we proceed to discuss.

It is first asserted that the court erred in permitting counsel for appellee to cross-examine J. P. Brumbelow, Secretary and Treasurer of appellant company, relative to certain matters that had not been included in the interrogation on direct examination, and which (according to appellant) related only to the cross complaint filed by appellee. In the first place, the examination appears mainly to enlarge upon questions which were touched upon in the direct examination, and in the next place, though the general rule is that cross-examination must be confined to only those facts and circumstances connected with the matters actually stated by the witness during direct examination, we have also recognized the discretionary power of the trial court to allow variations from the customary order. Ordinarily we decline to consider as error any variation sanctioned by the trial court unless there is an abuse of discretion. St. Louis, I. M. & S. Ry. Co. v. Raines, 90 Ark. 398, 119 S.W. 665; Hightower v. Sholes, 128 Ark. 88, 193 S.W. 257. See also article entitled 'Cross Examination and Impeachment' by Jerome K. Heilbron, attorney of Fort Smith, at Page 41, Volume 15, Arkansas Law Review. We find no abuse of discretion in the present instance, particularly inasmuch as the subject matter was covered by later witnesses.

In making his opening statement to the jury, counsel for appellee remarked that the litigants 'threw this contract out the window and made an oral contract.' Appellant objected to the statement on the ground that no oral agreement had been pleaded. The objection was overruled. It is true that the answer and cross complaint do not assert any agreement made subsequent to the original contract, but we are unable to see that any prejudice resulted to appellant from the statement made by counsel in his opening remarks. After all, this was merely a statement--not evidence. A more proper moment for this objection to have been made was at the time the proof of a new agreement was offered. Richards offered this proof during his testimony--and no objection of any nature was made by appellant.

It is asserted that the judgment is contrary to the evidence, but the duty of passing upon the evidence was a proper prerogative of the jury, and not this court. The testimony was quite conflicting, constituting what is sometimes referred to as a 'swearing match' between the litigants and their respective witnesses, and presented the questions of whether the parties proceeded entirely under the original agreement or under a subsequent agreement, which party first violated the contract under which they were operating, or whether, possibly, both abandoned any agreement that had been made. The company contended that Richards did not deliver the gravel in the quantities, nor manner, called for by the contract, and evidence was offered in support of that contention, and to explain the amount of damages sought ($42,753.50) in the complaint. From the testimony of Brumbelow:

'The total number of days should have been 365, but we started with October 26th, which is 295--I beg your pardon--294 days, and we--and I counted them by the calendar--it was 42 Sundays taken from that 294 which would leave 252 days. Of course, the contract had a high water clause, it would necessarily have a bad weather clause, and the added high water clause by most stated contracts will give a twenty-five percent leverage for high water on their contract, which we gave to him in determining the number of days of operation. So we took twenty-five percent off the 252 which would have been 63 days that we were allowing him for high water, would have been a total of 189 operating days at the plant. Now, 189 days times five hundred yards per day would have been 94,500 yards of material that should have been put to the plant in the 189 days of operation. Now, he actually put to the plant in those days a total of 8,993 yards. That figure I gave you while ago was correct. He actually put 8,993 yards to the plant, which, incidentally was only sixteen days of operation for the plant out of that particular year forfeiting the contract, which would leave the amount under the contract of 85,507 yards, and that times fifty cents would be $42,753.50.'

Several other witnesses testified that Richards never did deliver as much as 500 cubic yards in any one day, and gravel was not delivered in sufficient amounts to permit full operation of the plant.

Appellee disputed these statements, testifying that he started hauling gravel as soon as the plant was ready for operation (some time in October). Richards stated,

'They had some gravel on the ground in the stockpile at all times, except one time when Mr. Ament asked me to shut off hauling for one week. There was so much stuff there, we have him covered up on the ground, so he could not get around with his loader, and it was one week there that we did not haul any gravel for him at his request. * * * Well, we would back up there with a load of gravel and nine times out of ten we would have to sit there and wait anywhere from ten minutes to an hour, and then when we did get a chance to dump it out we would have to raise the bed at least three times, because it would run over on the belt and it would shut down, and we would sit there. Every load we put in it was like that. They would ask us to do that because the conveyor belt would break. And on several occasions they would have to stop hauling and clean that hopper out with a shovel.'

Other witnesses also testified substantially to the same facts. ³ Appellee testified that he finally quit hauling because 'they went broke and didn't have any money to operate on.'

Certainly, there was evidence under which the jury could find that a supplemental agreement was entered into. The testimony reflects that it became necessary to enter into a further contract relative to obtaining gravel to supplement the amount of gravel being hauled from the river. ⁴ An agreement was entered into to pay Richards $1.05 per yard for gravel hauled from another location. While Brumbelow testified 'that was all Mike's idea,' the company did accept the gravel, and paid Richards for part of it. Admittedly, appellant still owes Richards $618.40.

Appellant complains that Richards should not have been permitted to present the proof just mentioned, since his pleadings did not assert this agreement; however, as heretofore pointed out, this evidence was offered without objection. In Fairbanks-Morse & Company v. Hogan, 201 Ark. 1114, 148 S.W.2d 162, we said:

'Where the plaintiff acquiesced in the method of examining witnesses and did not contend trend of the testimony thus adduced was outside the scope of the pleadings, the answer will be treated as having been amended to conform.'

See also R.C.A. Victor Co., Inc., v. Daugherty, 191 Ark. 401, 85 S.W.2d 559.

There was likewise testimony under which the jury could have found that appellant company was not in sufficient operating condition to use 500 cubic yards of aggregate each day. While this was stoutly...