Alexander v. Williams-Echols Dry Goods Company

• Decision Date: 10 December 1923
• Docket Number: 42
• Citation: 256 S.W. 55,161 Ark. 363
• Parties: ALEXANDER v. WILLIAMS-ECHOLS DRY GOODS COMPANY
• Court: Arkansas Supreme Court

256 S.W. 55

161 Ark. 363

ALEXANDER v. WILLIAMS-ECHOLS DRY GOODS COMPANY

No. 42

Supreme Court of Arkansas

December 10, 1923

Appeal from Sebastian Circuit Court, Fort Smith District; John Brizzolara, Judge; affirmed.

Judgment affirmed.

James B. McDonough, for appellant.

The court erred in construing the contract. 117 Ark. 173; 46 Ark 210; 9 Ill.App. 183; 107 Ill.App. 32; 65 So. 696; 101 Ala 368; 19 Okla. 429; 42 W.Va. 430; 164 Mass. 490; 39 Fla. 523; 69 So. 992. A contract must be construed most strongly against the one who drew it. 73 Ark. 338; 115 Ark. 166; 112 Ark. 1; 151 Ark. 81; 12 Pa. C. Ct. Rep. 363; 126 F. 831; 173 F. 855; 195 F. 731; 94 Ark. 493; 78 Ark. 202. It is a well-settled rule of this court that it is the duty of the court to construe a written contract. 101 Ark. 353. The court erred in admitting testimony showing the custom of wholesale grocers. 91 So. 784; 132 Ark. 197; 72 So. 548; 159 P. 1084; 59 A. 607, 104 Ill.App. 165; 119 Iowa 702; 49 S.W. 462. A custom is only admissible when the contract is doubtful. 186 Mass. 589; 44 N.Y.S. 271; 55 N.Y.S. 583. Custom or usage cannot be substituted for the will of the parties, as expressed in the contract. 48 So. 927; 181 Ill.App. 113; 129 N.W. 54; 150 Iowa 169; 148 Mich. 271; 159 Mich. 583; 125 S.W 238; 157 N.Y.S. 147; 31 Ohio Cir. Ct. R. 557; 102 P. 750. The court erred in admitting the testimony of J. E. Freeze. 136 Ark. 554; 65 Ark. 316; 57 Ark. 402. It was self-serving evidence, and not admissible. 12 Ark. 775; 14 Ark. 159; 94 Ark. 183.

Daily & Woods, for appellee.

The court did not err in submitting the question of "custom" to the jury. 109 Ark. 276; 13 Wall. 363; 34 Law ed. 568; 29 P. 463; 114 N.Y. 140; 21 N.E. 737; 33 Mich. 348; 69 Ark. 313. The existence of a usage or custom is generally regarded as a question of fact for the jury. 27 R. C. L. 196. The testimony of J. E. Freeze was properly admitted. 136 Ark. 554; 65 Ark. 316; 57 Ark. 402.

OPINION

SMITH, J.

Appellant was employed as a traveling salesman by appellee, Williams-Echols Dry Goods Company, under a written contract covering the year beginning October 15, 1920, and ending October 15, 1921. This contract reads as follows: "This agreement entered into this 15th day of October, 1920, at Fort Smith, Arkansas, by the Williams-Echols Dry Goods Company, of Fort Smith, Arkansas, and O. A. Alexander, of Fort Smith, Arkansas, as follows: For the compensation of 3 per cent. commission on the total amount of goods sold by O. A. Alexander, as traveling representative for the Williams-Echols Dry Goods Company and shipped by said company, O. A. Alexander does hereby agree to give his undivided service to said company for a period of one year, beginning October 15, 1920, and ending October 15, 1921. It is further agreed that this 3 per cent. commission shall not be paid by the Williams-Echols Dry Goods Company on goods they ship other than those shipped from the stocks of said company. It is also agreed that the amount of all goods returned to the Williams-Echols Dry Goods Company having been sold by O. A. Alexander shall be deducted from the sales of O. A. Alexander as they are returned, and no commission shall be allowed thereon. It is also agreed that goods sold by O. A. Alexander, such as samples and defective merchandise, shall not be included in sales on which a commission shall be paid. The Williams-Echols Dry Goods Company agrees to pay all traveling expenses of O. A. Alexander in performance of his duties as their traveling representative, and agree to pay O. A. Alexander $ 300 per month for twelve months beginning October 15, 1920. The total of these payments shall constitute a part payment of the 3 per cent. commission to be paid on the total amount of sales made by O. A. Alexander as above described, and shall be deducted from the total amount of commissions earned when full settlement of commissions shall be made on October 15, 1921. Any sum paid to O. A. Alexander during the above stated twelve months in excess of commissions actually earned shall be returned by him to the Williams-Echols Dry Goods Company.

"Williams-Echols Dry Goods Company,

"J. B. Williams, president.

"O. A. Alexander."

Prior to the execution of this contract, appellant had been employed by appellee under a verbal contract for a guaranteed salary and a contingent commission. At the expiration of the year covered by the written contract the parties thereto differed as to the sum which appellant had earned under it, the difference arising chiefly out of the different interpretations placed upon the written contract, and for that reason we have copied it at length.

It was contended by the company that appellant had sold during the year goods amounting to $ 73,844.95, and that his commissions thereon amounted to $ 2,215.35, and no more, and, as the company had paid appellant during the year covered by the contract, $ 300 each month, it claimed to have overpaid appellant the difference, amounting to $ 1,384.65, on which there was a credit for services rendered after the expiration of the contract, leaving the net amount due it of $ 1,224.65, and this suit was brought to recover that sum.

Appellant answered and denied owing the company anything. He alleged in his answer that he had been employed as a salesman, and that it was his duty, under the contract, to devote his entire time to the sale of goods, but the company wrongfully required him to devote a large part of his time to making collections, thus interfering with sales which he would otherwise have made and on which he would have earned commissions, and that the company breached the contract by failing to carry a full line of goods such as he had been employed to sell.

There was a trial upon these issues, and a verdict and judgment in favor of the company, from which is this appeal.

Appellant contends that the contract is an unambiguous instrument, and should have been construed by the court, and that a proper construction of the instrument is that he was required only to sell goods, and that any other duty imposed upon him was in violation of the contract, and that he was entitled to compensation for such services, and was entitled also to the commission which he would otherwise have earned, including the amount which he failed to earn because of the company's failure to carry a proper line of goods.

The court took the view that the contract did not define the duties of a traveling representative, and permitted testimony to be introduced showing what these duties were. This testimony was to the effect that it had long been the custom for traveling representatives to make collections in the territory covered by them, and it was shown also that appellant had previously made these collections. This last testimony was objected to specifically upon the ground that appellant had been previously employed under a different contract, and that, whatever the custom may have been, it could not control the express terms of the written contract.

We think no error was committed in the admission of this testimony. The contract does not expressly define appellant's duties. It does employ him for one year as the company's traveling representative, and did require him to give his undivided services to the company for the period of one year, and it required the company to pay all expenses incurred by appellant in the discharge of his duties. It will be observed that the commission was not to be paid upon all orders taken by appellant, but only on those orders which were filled by shipping the goods, and it is therefore obvious that it was to the interest of both parties that the bills should be paid, thus insuring, so far as the appellant was concerned, the filling of future orders. The testimony also shows that appellant was only required to collect in the territory which he covered as a salesman and from the customers to whom he sold, and that he was given credit for all goods sold in his territory, whether the orders were received by the company through him directly or not.

Inasmuch as the contract did not specify what appellant's duties as traveling representative were, it was not improper to prove the general custom in relation thereto as a means of interpreting the terms of the contract, and the court did not err in submitting to the jury the questions of fact relating thereto.

In the case of Robinson v. United States, 80 U.S 363, 13 Wall. 363, 20 L.Ed. 653, it was said by the Supreme Court of the United States that: "If a person of a particular occupation, in a certain place, makes an agreement by virtue of which something is to be done in that place, and this is uniformly done in a certain way,...