Beatrice Creamery Company v. Garner

• Decision Date: 05 July 1915
• Docket Number: 93,151
• Citation: 179 S.W. 160,119 Ark. 558
• Parties: BEATRICE CREAMERY COMPANY v. GARNER
• Court: Arkansas Supreme Court

179 S.W. 160

119 Ark. 558

BEATRICE CREAMERY COMPANY v. GARNER

No. 93, 151

Supreme Court of Arkansas

July 5, 1915

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor affirmed.

Decree affirmed.

L. E Hinton and Comer & Clayton, for appellant.

1. It was error to dismiss that part of the complaint of the appellant praying for a judgment over against Garner for the sum of $ 1,951.02, and to consolidate that part of appellant's suit seeking to recover the $ 1,707.75 from Hicks. The court had jurisdiction to determine whether Hicks was trustee, and if he held the latter sum for the plaintiff. Having rightfully acquired jurisdiction for one purpose, it had jurisdiction for the purpose of granting complete relief either legal or equitable, to which any of the parties were entitled. 70 Ark. 189; 14 Ark. 50; 37 Ark. 164, 187; Id. 286, 292; 75 Ark. 52, 55; 77 Ark. 570, 576. The two suits were not between the same parties at any time, and involved, in part, different issues. The court should not have consolidated them. 74 Ark. 54.

2. The contract between appellant and the Bunch Commission Company was assignable. The evidence clearly discloses an assignment of the contract. No particular words are necessary to constitute an assignment. 17 How. 353; 1 Wall. 604; 2 Am. & Eng. Enc. of L. (2 ed.), 1055; 2 Ruling Case Law, 614. After the assignment, the Bunch Company can only be held as the agent of Garner as undisclosed principal, and upon discovering the agency appellant had the right to hold the principal for the debt due it, certainly to the amount which Garner then owed and had not paid to the Bunch Company. 87 Ark. 434; 87 Ark. 374; 50 Ark. 433; 37 F. 49, 2 L. R. A. 749.

H. M Trieber, for appellee Maloney, trustee.

1. The chancellor properly dismissed appellant's suit on account against Garner. No part of its complaint stated a cause of action cognizable in equity, as it did not allege that Hicks was holding the money at the time of the suit. There is, therefore, no room for argument on the part of appellant that the chancery court, having acquired jurisdiction for one purpose, will hold it for all purposes.

2. There was no abuse of discretion in consolidating the cases. Act 339, Acts 1905; 83 Ark. 288.

3. The chancellor's findings on the merits are not against the preponderance of the evidence.

HART J. MCCULLOCH, C. J., dissenting. Mr. Justice KIRBY concurs.

OPINION

HART, J.

On November 23, 1914, W. H. Garner and the German National Bank of Little Rock, Arkansas, as trustee, filed a bill of interpleader in the Pulaski Chancery Court in which the Beatrice Creamery Company, a corporation organized and doing business under the laws of the State of Oklahoma, and J. S. Maloney, as receiver of the T. H. Bunch Commission Company, a domestic corporation, were asked to be made parties defendant. The bill of interpleader alleges that during the months of September and October, 1914, the Beatrice Creamery Company shipped and consigned to the T. H. Bunch Commission Company, at Little Rock, Arkansas, butter of the value of $ 1,707.75; that upon the arrival of said butter at Little Rock, it was turned over by the Bunch Commission Company to W. H. Garner; that Garner sold said butter of the value of $ 1,707.75 to retail merchants, and that the proceeds were in his possession until October 15, 1914, when the same was paid over by him to the German National Bank of Little Rock, Arkansas, as trustee, to be held by it pending settlement of the ownership of said money; that both the Bunch Commission Company and the Beatrice Creamery Company were claiming said fund and demanding payment from the defendant Garner. The plaintiffs paid said money into the registry of the court, and asked that the receiver of the Bunch Commission Company and the Beatrice Creamery Company be compelled to interplead for said fund. The receiver of the Bunch Commission Company entered his appearance to the suit, but no service of any kind was had upon the creamery company, and that company did not enter its appearance to the action.

The Beatrice Creamery Company filed an independent action in the chancery court against W. H. Garner and W. A. Hicks, cashier of the German National Bank. The plaintiff alleges that the T. H. Bunch Commission Company entered into a contract with it whereby the creamery company agreed to sell and deliver to said commission company its output of butter which was shipped and delivered at Little Rock, Arkansas, and that said commission company was to have the exclusive right to sell the butter of the creamery company in the city of Little Rock; that subsequently the commission company assigned its contract with the creamery company to W. H. Garner, and that thereafter Garner continued to act as exclusive seller of the butter of the creamery company in Little Rock; that the creamery company since then has shipped butter to Little Rock of the contract value of $ 3,658.77, and that the same was accepted and received by the said Garner, but that he has failed and refused to pay for same. The complaint further alleges that Garner admitted liability for the purchase price of a part of said butter in the sum of $ 1,707.75, and that that amount had been paid by him to W. A. Hicks, as trustee, with the understanding that the latter should hold the same for the parties held to be entitled to it.

The prayer of the complaint is that Hicks be enjoined from paying said sum of money so held by him to any one until the final hearing of this cause, and that said amount then be paid to said creamery company to be applied as a credit on the amount alleged to be due it by said Garner, and that it have judgment against Garner for the balance alleged to be due, namely, the sum of $ 1,951.02.

On motion of W. H. Garner, the court ordered that that portion of the action instituted by the Beatrice Creamery Company against W. H. Garner and W. A. Hicks for $ 1,707.75 deposited in the registry of the court, be consolidated with the interpleader suit.

The court sustained a demurrer to the complaint of the creamery company asking a judgment against Garner for the sum of $ 1,951.02 and dismissed his complaint in that respect without prejudice to his bringing an action at law.

At the hearing of the consolidated causes the testimony of W. H. Garner and T. H. Bunch was taken before the court orally, and their testimony reduced to writing and by order of the court filed as their depositions in the cause. It appears from their testimony that the T. H. Bunch Commission Company, before it became insolvent, did a large commission business in the city of Little Rock; that a part of its business was to sell butter, and that it had a contract with the Beatrice Creamery Company to take the entire output which it shipped to the city of Little Rock.

The commission company had a standing order with the creamery company for its butter and payment was usually made once a week, though at times longer intervals between payments occurred. W. H. Garner was in the employ of the Bunch Commission Company, and had charge of the sales of butter made by it to the retail merchants of Little Rock.

Subsequently, the Bunch Commission Company made an agreement with Garner whereby the latter was to take off its hands the butter consigned to it by the creamery company at the price that it paid the latter therefor; in other words, the commission company agreed with Garner to sell him the butter it received from the creamery company at the actual cost price, and Garner was thereafter to sell the butter to the retail trade of Little Rock at whatever price he desired.

The Bunch Commission Company had a rating with the creamery company, but Garner was unknown to it.

The commission company continued to receive consignments of butter from the creamery company under its contract with that company and made its remittances therefor about once a week as it had agreed to do. It turned the butter over to Garner at its actual cost, and Garner made settlements with the commission company once a week therefor.

Prior to the institution of this action the Bunch Commission Company became insolvent and a receiver was a pointed to take charge of its assets.

The court found that the T. H. Bunch Commission Company was not the agent of Garner in the purchase of the butter from the creamery company in the transaction involved in this suit and that the transaction was one of sale on open account by the creamery company to the commission company and a resale on open account by the commission company to Garner, and Garner having deposited the money in the registry of the court was discharged from all liability to either the Bunch Commission Company or the Beatrice Creamery Company. The clerk of the court, with whom the money had been deposited, was...