Arkansas Lumber & Contractors' Supply Company v. Benson

• Decision Date: 29 November 1909
• Citation: 123 S.W. 367,92 Ark. 392
• Parties: ARKANSAS LUMBER & CONTRACTORS' SUPPLY COMPANY v. BENSON
• Court: Arkansas Supreme Court

123 S.W. 367

92 Ark. 392

ARKANSAS LUMBER & CONTRACTORS' SUPPLY COMPANY v. BENSON

Supreme Court of Arkansas

November 29, 1909

Appeal from Garland Circuit Court, W. H. Evans, Judge; affirmed.

Greaves & Martin, for appellant.

The words "goods, wares and merchandise" in the statute of frauds include whatever is not embraced in the words "lands, tenements and hereditaments." 13 Gratt 789; 24 N.Y. 353; 36 Vt. 64; 55 L. R. A. 155; 54 A. 225; 34 N.H. 477; 26 A. 134; 2 Wend. 327. There must have been a sale before the broker is entitled to his commission. 87 Ark 506; 105 Cal. 514; 45 Am. St. 87; 13 La.Ann. 51; 50 N.Y.S. 128; 27 A.D. 117; 116 Ill.App. 397; 214 Ill. 259; 64 Ill.App. 208; 14 C. C. A. 109; 66 F. 425. An acceptance in order to bind the party offering must be without condition and in due time. 137 F. 586; 69 C. C. A. 674; 22 F. 596; 41 So. 675; 68 L. R. A 226; 95 Mo.App. 426; 69 S.W. 34; 85 Mo.App. 542; 97 Me. 408 54 A. 918; 35 Kans. 447. If the offer stipulates a time for acceptance, the acceptance must be within such time. 39 U.S 77; 64 F. 560; 56 Ill. 204; 35 Kan. 447; 3 Dak. 141; 13 N.W. 576; 130 Mass. 173; 141 Mass. 278; 76 N.Y. 622; 30 Neb. 536. Reasonable time is such time as protects each party from losses that he ought not to suffer. 61 S.W. 889; 161 Mo. 606. Only so much time as is necessary under the circumstances. 54 Mich. 496; 71 P. 1032; 7 N.H. 549. The instructions should be considered together and construed as a whole. 37 Ark. 238; 48 Ark. 396; 59 Ark. 98; 55 Ark. 397; 71 Ark. 38; 64 Ark. 247; 66 Ark. 588; 86 Ark. 104; 83 Ark. 70. Conflicting instructions where the evidence is also conflicting should not be given. 74 Ark. 437; 72 Ark. 41; 65 Ark. 641; 88 Ark. 550. An instruction which assumed as proved a fact which is to be found by the jury is erroneous. 18 Ark. 521; 20 Ark. 471; 23 Ark. 411; 36 Ark. 117; 24 Ark. 540; 71 Ark. 438; 76 Ark. 468; 70 Ark. 337; 74 Ark. 563.

Hogue & Cotham, Vaughan & Vaughan and Palmer Danaher, for appellee.

As against the agent's right to commission, the principal cannot interpose the objection that the contract is void under the statute of frauds. 149 U.S. 481. There is no room for a plea that the contract is void under the statute of frauds, as this is an action for broker's commission. 76 Ark. 399; 130 Ill.App. 328; 133 Ill.App. 491. Where the minds of the vendor and vendee have been brought to an agreement, the broker is entitled to commission. 83 How. Pr. 440; 87 Cal. 313; 25 P. 430; 50 Ill.App. 120; 124 Ia. 61; 99 N.W. 103. An uncommunicated revocation is no revocation at all. 47 Ark. 527.

OPINION

BATTLE, J.

On the 19th day of October, 1907, A. W. Benson filed a complaint against the Arkansas Lumber & Contractors' Supply Company in the Garland Circuit Court, alleging therein that the Lumber & Supply Company, a corporation, employed him as a special salesman, and agreed to pay him a commission on all business secured for it by him at the rate of five per cent. on rough lumber and ten per cent. on millwork, and furnished him with $ 25 to defray expenses; that on July 27, 1907, he procured from Staunton & Collamore, contractors, a bill of specifications for wood work to be done in the Hotze or Gazette Building in Little Rock, and submitted same to the defendant, who made an estimate of the cost of the bill, and forwarded the same to plaintiff, and that the bid of defendant was $ 4,600, and the same was accepted by Staunton & Collamore. Plaintiff claimed a commission of $ 460, and asked judgment for that amount.

Defendant denied the allegations in the complaint.

The defendant was a corporation organized under the laws of Arkansas with its chief place of business at Hot Springs, in this State, and was engaged in the business of manufacturing lumber and builders' supplies. In June, 1907, it employed plaintiff to do a soliciting business for it in Little Rock at prices it would furnish him from time to time. Benson testified that he was to receive commissions at the rate of ten per cent. on mill work, and five per cent. on rough lumber, on all the orders he received. M. M. Harrell, the manager of the defendant, testified that defendant employed him "and agreed to allow him five per cent. commission on rough lumber and ten per cent. on mill work; this commission to be paid after the material was furnished and he had collected in full for same. He was to keep his commission out and remit the balance to the company." And further testified that "the defendant reserved the right to refuse or reject any contract on which it had submitted an estimate if it did not receive an acceptance of the bid within a reasonable length of time." The Gazette or Hotze Building, in Little Rock, Arkansas, was then in contemplation. Plaintiff secured a set of the plans of the building and took them to Hot Springs to the defendant, and it agreed to send to plaintiff at Little Rock an itemized estimate of what they would do the work and furnish supplies for. This was done on the 16th day of July, 1907, and he submitted the bid to Staunton & Collamore, the contractors who had undertaken to construct the building, on the 17th or 18th day of the same month; and they accepted the bid on the second day of September, 1907. On the 7th day of September, 1907, defendant refused to perform what it had proposed to do by its bid. Plaintiff testified that Harrell, the manager of the defendant, met him on that day and said, "Benson, we can't get out this mill work. We are going to shut down." Harrell testified: "The defendant did not accept this work, for the reason that we never heard from A. W. Benson, or any one else, in a reasonable length of time after we had made the estimate, and naturally supposed we had failed to get the job, and before we did hear from them we had used up a quantity of birch lumber that we had figured on using for the interior of the building for this job, and that our company did not feel like accepting the order at the time he (Benson) said he had secured it, as we (defendant) were not in a position to get the work out as cheaply as we could have done had we received the order within a reasonable length of time after giving an estimate on same." H. R. Vaughan, the president of the defendant company, testified that that was not the reason, but because no arrangement was made as to how the proposition made by the bid should be performed.

Benson testified that, after the bid was submitted to Staunton & Collamore, and before its acceptance, he communicated with the defendant, through its manager, Harrell, almost daily, by letter and telephone; that the company never made any complaint of the delay at all, but encouraged him all the time, and told him to keep on trying, and that when finally he advised it of his success, it congratulated him, and told him it knew he would eventually get that job. Harrell testified that he does not remember these communications.

The contract sued on was not in writing. Twenty-five dollars were advanced to plaintiff by defendant on expense account.

The court gave the following instructions, at the instance of the plaintiff, over the objection of defendant:

"VI. The court instructs the jury that if they find that plaintiff was authorized to find purchasers and submit bids and propositions to prospective buyers for the sale of defendant's lumber, then he was the agent of the defendant for that purpose; and if you find that defendant authorized the plaintiff as its agent to submit a proposition to Staunton & Collamore, to sell them a certain quantity of lumber for $ 4,600, and that the plaintiff submitted said proposition to said Staunton & Collamore, while he was still acting as such authorized agent of defendant (if you so find), and before the said proposition had been revoked by defendant, then you should find for the plaintiff.

"VII. The jury are instructed that a contract may be either verbal or written, or it may result from the conduct of the parties, and that the one is just as legal and binding as the other. In order to entitle the plaintiff to recover in this case, it is not necessary for him to prove a contract in writing with the defendant, but such contract may be proved by the words or conduct of the parties. And you are further instructed that it is not necessary for the plaintiff to prove that Staunton & Collamore accepted the defendant's bid on the Gazette or Hotze Building in writing, but that said acceptance may be proved or inferred from the words or conduct of the said Staunton & Collamore, made to or in the presence of an authorized agent of the defendant."

The defendant asked for the following instruction:

"V. If you find from the evidence that the agreement between the plaintiff and the defendant was that plaintiff might solicit orders for the lumber and mill work, to be supplied by the defendant; that the orders were to be sent to the defendant, and that the defendant was to exercise its judgment as to whether they were to be filled; that, in the event the orders were filled by the defendant, the plaintiff was to receive a commission of five per cent. on rough lumber and ten per cent. on mill work, payable after the orders were filled and the proceeds collected by the defendant; and if you further find that the defendant made a proposal for mill work with Staunton & Collamore, on or about July 16, 1907, and that said proposal was not accepted until September 2, and that it was not accepted outright then, but was subject to further consideration and agreement as to the time the materials were to be supplied, and when paid for, and other details, and that the defendant then declined to proceed with the matter further, your verdict will be for the defendant."

And the court modified and gave it as follows:

"V. If you...