Allen-West Commission Co. v. People's Bank

• Decision Date: 28 January 1905
• Citation: Allen-West Commission Co. v. People's Bank, 74 Ark. 41, 84 S.W. 1041 (Ark. 1905)
• Parties: ALLEN-WEST COMMISSION CO. v. PEOPLE'S BANK
• Court: Arkansas Supreme Court

84 S.W. 1041

74 Ark. 41

ALLEN-WEST COMMISSION CO. v. PEOPLE'S BANK

Supreme Court of Arkansas

January 28, 1905

Cross appeals from Yell Circuit Court, Dardanelle DistrictWILLIAM L. MOOSE, Judge.

Affirmed.

STATEMENT BY THE COURT.

On the 25th day of June, 1897, the Allen-West Commission Company, of St. Louis, Missouri, entered into the following contract with the People's Bank and John B. Crownover, the cashier of that bank:

"For and in consideration of the Allen-West Commission Company, of St. Louis, Missouri, carrying over the amount now due them by us on open account or note, and certain further advances of money to be made by them to us during the spring and summer of 1897, at the expressly agreed rate of interest of eight (8) per cent. per annum, as evidenced by our note of even date herewith, for twenty-five hundred dollars ($ 2,500), and due December 1, 1897, we hereby bind ourselves and guaranty to ship them, for sale on commission, during the season commencing September 1, 1897, and ending September 1, 1898 not less than ten (10) bales of cotton for each one hundred dollars ($ 100) so carried over for and advanced to us during the spring and summer of 1897, and, should we fail to ship them cotton in the above-named proportion, we hereby agree and bind ourselves to pay them a commission of one dollar and twenty-five cents ($ 1.25) per bale on any number of bales that our shipments to them may fall short of the above-named proportion; but our intention is to ship the cotton, and to make shipments as early and as rapidly as possible in the fall of 1897 as the circumstances will permit.And, should we be in their debt during and over the spring and summer following this year, we hereby further bind ourselves to fulfill to them a like obligation to this in regard to interest and shipment of cotton or the payment of commissions.

"And it is expressly agreed and understood between us and the said Allen-West Commission Company that they shall have the exclusive right to apply the net proceeds of all cotton shipped and all payments of money made to them to the payment of all indebtedness which may be due now, or which may hereafter become due to them by us upon open account, or to the debt mentioned in this agreement, according to their view of the exigency of the case; that such application may be made in such a manner as they may elect, and that no application of such proceeds of sale or money to the payment of any debt in open account, which at any time may be due to them by us, shall impair, lessen or prejudice the debt named in this agreement.

"This guaranty is for two hundred and fifty bales of cotton.

"Witness our hands and seals, at Dardanelle, Ark., this 25th day of June, 1897."

The evidence shows that by custom of cotton dealers the cotton season of each year ended on the 1st day of September, and that a new season commenced on that day.

On the 1st day of September, 1897, the indebtedness of the bank and Crownover to the Commission Company was $ 343.58, on account carried over from the previous cotton year, and $ 2,500 on the note for money advanced under the contract.

During the season following the bank shipped the Commission Company under the contract 36 bales of cotton, and afterwards paid the note and the balance due on the account as above stated but did not pay the $ 1.25 per bale of cotton which was called for by the contract upon each bale which it fell short of contract requirement.Afterwards the Commission Company brought suit in the circuit court to recover a balance of $ 495.54, which it claimed under the contract.

The defendants appeared, and answered, and denied liability.On the trial the cause was submitted to the circuit judge without a jury, who found the following facts:

"That under the contract exhibited as evidence in this caseplaintiff is entitled to commissions on only 214 bales of cotton for the season of 1897, 36 bales of cotton having been shipped under said contract, said commissions amounting to $ 267.50, which bears interest from September 1, 1898, at 6 per cent.

"The court also finds that there is due the plaintiff from defendants on account, as per exhibit No. 41, the sum of $ 63.98, with 8 per cent. interest from September 1, 1898, to this date.All of said sums amount to $ 382.95, less a credit of $ 15 admitted to have been paid thereon, leaving a balance of $ 367.95."

The court gave judgment accordingly.The plaintiff appealed, and defendants, after offering to pay the judgment, took a cross appeal.

Judgment affirmed.

G. S. Cunningham, J. C. Hart, J. M. Moore, W. B. Smith, for appellant.

A provision in the contract for the payment of the usual commissions for the sale of cotton as liquidated damages for failure to ship the cotton will not taint the contract with usury.22 S.C. 367;21 S.W. 946;56 N.W. 383;7 S.E. 224; 9 S.C. 344;65 Ala. 511;27 N.Y. 146;16 F. 89;10 S.E. 444; 74 Ga. 595;78 Ga. 251;6 Munf. 438;4 So. 190;64 Ala. 527;37 S.C. 579;64 Ala. 527.When a factor renders an account, it is the duty of the principal to examine it, and sanction or repudiate it within a reasonable time.Mech. Ag. §§ 1021, 1023;53 Ark. 160;107 U.S. 333;71 F. 58.

John B. Crownover and J. W. & M. House, for appellees.

A liability on a contract and on an account stated can not be joined in the same action.2 Green. Ev. 127;1 Johns. 34;2 Tenn. Rep. 479;26 N.W. 706.The bank can not be held responsible for a contract which is not authorized by its charter.2 Herm. Estop. §§ 1176, 1177.The contract is usurious.85 Ala. 384;10 S.E. 444; 78 Ga. 257;34 S.W. 405;64 Ala. 532;59 Ark. 366;95 N.C. 468;35 Oh. St. 107;54 Ala. 646;8 Neb. 48.This is not a suit on an account stated.108 F. 723.The burden of proving that appellant was a corporation was upon appellant, since the answer denied its corporate existence.2 Cook, Corp. § 637;7 Wend. 540.

OPINION

RIDDICK, J., (after stating the facts).

This is an...