Arkansas Zinc & Smelting Corporation v. Silver Hollow Mining Co.

Citation230 S.W. 573,148 Ark. 512
Decision Date09 May 1921
Docket Number324
PartiesARKANSAS ZINC & SMELTING CORPORATION v. SILVER HOLLOW MINING COMPANY
CourtSupreme Court of Arkansas

Appeal from Marion Chancery Court; B. F. McMahan, Chancellor reversed.

Decree reversed and cause dismissed.

Daily & Woods and J. H. Black, for appellant.

According to the character of the ore shipped, the schedule of prices provided in sections 9 and 10 of the contract governed, and the payments made on each shipment were calculated on the correct basis, and there was an accord and satisfaction. The checks sent in payment were received and cashed.

Where there is any ambiguity in the contract, then the parties are bound by the construction which they themselves have placed upon it. 134 Ark. 542; 104 Id. 474; 98 Id. 425; 95 Id. 454; 46 Id. 131; 55 Id. 417; 52 Id. 73; 88 Id. 363.

Plaintiff received settlement sheets and received and cashed the checks in settlement, and this constituted an accord and settlement and there was nothing due appellee, and the cause should be reversed and dismissed, as there was accord and satisfaction. 1 C. J., pp. 563-4, § 87: 94 Ark. 158; 98 Id. 269; 100 Id. 251.

J C. Floyd and Williams & Seawell, for appellee.

If the contract is ambiguous and susceptible of more than one construction, it is the duty of the court to place that construction on it most favorable to appellee, as appellant prepared the contract. 74 Ark. 41; 84 Id. 431; 105 Id. 518; 112 Id. 1; 174 S.W. 136. Under these authorities the court properly construed the contract and held that appellee was entitled to settlement under the schedule in paragraph 14. Appellee is not estopped, and the contention is without merit. From the letters it appears there was no compromise or accord. 99 Ark. 260; 91 Id. 141. The evidence sustains the finding of the chancellor on every question involved, and should not be disturbed. 96 Ark. 434; 95 Id. 523.

OPINION

HUMPHREYS, J.

Appellee instituted suit against appellant in the Marion Chancery Court to recover $ 2,999.99 for an alleged balance due it on account of shipments of zinc silicates and zinc sulphides under contract entered into between appellant and appellee on the 21st day of June, 1916. It was alleged that the payments made upon each shipment were erroneously calculated under the basis provided in sections 9 and 10 of the contract, instead of the basis provided in section 14 thereof; that the account between the parties is complicated, and that a correct accounting between them will require the aid of a master.

Appellant interposed two defenses, the first being that, according to the character of the ore shipped, the schedule of prices provided in sections 9 and 10 of the contract governed, and that the payments made on each shipment were calculated on the correct basis; the second being an accord and satisfaction.

The court found that, in ascertaining the correct amount due on each shipment, section 14 of the contract controlled, and that the amounts should have been calculated on a sliding scale, based upon an assay of sixty per cent. metallic contents of zinc sulphides and forty per cent. of zinc silicates, and, in accordance with the finding, entered a decree in favor of appellee for $ 1,662. From that decree an appeal has been duly prosecuted to this court, and the cause is here for trial de novo.

The contract in question was entered into between the parties on the 21st day of June, 1916. It provided for the purchase by appellant from appellee of 300 tons of zinc silicates per month and 700 tons of zinc sulphides per month, covering a period of three years. The contract contained apparently conflicting paragraphs for ascertaining the amounts to be paid for the ore--sections 9 and 10 provided for one basis to deduct smelting charges, and section 14 providing another. Something like fifty-six shipments were made by appellee from its mine at Rush to appellant's smelting plant near Van Buren, covering a period of about ten months. Upon the receipt of each shipment appellant made an assay of the ore and calculated the value of the shipment on the basis provided in section 9, if zinc silicates, and section 10, if zinc sulphides, and, in keeping with the assay and the calculations, made out a settlement sheet which it immediately mailed to appellee. Immediately thereafter appellant sent a check for the balance due appellee on the shipment, accompanied by a voucher reciting that the check was in full payment of the shipment. It appeared on each check sent appellee after January, 1917, that it was in full payment. Appellee retained and cashed each check. Each settlement sheet sent appellee by appellant disclosed the gross weight of each car, the per cent. of moisture therein the net weight, the zinc contents, the total value, the amount which had been advanced on the car, the freight charges, the smelting charges, the net value thereof, the assay and the basis upon which the settlement had been calculated, as well as the character of the ore contained in the shipment. It is disclosed in the record that other mining companies in the Rush district shipped ore to appellant under appellee's contract heretofore referred to. The Edith Mining Company, in charge of a Mr. Hirschler, shipped ore in this way. E. E. Schofield had charge of appellee's affairs. F. W. Bocking was one of the representatives of appellant's affairs. Schofield and Hirschler visited appellant's smelting plant, and, while there, had under discussion the question as to whether the price of ore shipped should be calculated on the basis provided in sections 9 and 10 or 14 of the contract. There is a conflict in the evidence as to the basis determined upon in that interview. On December 6 thereafter Bocking, representing appellant, wired appellee as follows: "We will not accept Edith (referring to ore shipped from the Edith mine) unless settled for under schedule as we have settled with you in the past. Please have definite understanding before shipping." Hirschler, representing the Edith Mining Company, replied to the wire as follows: "Your wire received. Thought my letter December 3 was clear. We fully understand that all shipments arranged for since my visit Van Buren are subject to charges mentioned in first part of contract and not as set out in schedule." Hirschler's wire was confirmed by a letter in part as follows: "We agree to the charges as set out in the first part of the contract, and not to those claimed by us on the...

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