Bloch Queensware Co. v. Metzger

• Decision Date: 30 November 1901
• Citation: 65 S.W. 929
• Parties: BLOCH QUEENSWARE CO. v. METZGER.
• Court: Arkansas Supreme Court

Page 929

65 S.W. 929

BLOCH QUEENSWARE CO. v. METZGER.

Supreme Court of Arkansas.

November 30, 1901.

Appeal from circuit court, Sebastian county; Styles T. Rowe, Judge.

Action by the Bloch Queensware Company against Rudolph Metzger. From a judgment in favor of plaintiff, it appealed. Reversed.

The Bloch Queensware Company is an Arkansas corporation, doing business at Ft. Smith. The Bloch Realty Company is an Ohio corporation. While the two corporations were not identical, three of the Bloch brothers comprise one, and four of them the other; and Abe Bloch, the president of the queensware company, was also a member of the realty company. Metzger had a store at Ft. Smith, and was also a contractor. This is a suit by the queensware company against Metzger for an alleged balance due for merchandise of $1,846.62. The answer admits the purchase of the goods, but claims that there is due a credit of $210.40 overcharge for goods returned, etc. As to the balance left after this, $1,636.22, set-offs are pleaded, based upon the following state of facts: Abe Bloch, as president of appellant company, and as agent therefor of the realty company, on December 28, 1896, entered into two written contracts with Metzger. The one designated in the answer as "A" was a contract by which the Bloch Realty Company employed the appellee to do certain carpenter work on a building in Cleveland. Ohio. Appellee was to finish the work by the 1st day of May, 1897. The realty company was to pay appellee the sum of $5,000, to be paid as follows, to wit (quoting from contract): "In such sum on every Saturday night as will pay off and satisfy the laborers working and others employed by the said Rudolph Metzger, and the said Rudolph Metzger for his expenses, superintendence, and work, all of the amount so to be paid each Saturday night." This contract was signed by the Bloch Realty Company, by Abe Bloch, and by Rudolph Metzger. The other contract, designated in the answer as "B," commenced as follows: "This agreement, made and entered into this 28th day of December, A. D. 1896, by and between the Bloch Realty Company, of Cleveland, Ohio, and Rudolph Metzger, of Fort Smith, Arkansas, witnesseth, that for and in consideration of the said Bloch Realty Company having let and awarded the contract for all carpenter work of whatsoever kind," etc., "on the building that is in progress of erection in the city of Cleveland, Ohio," etc. Then follows a clause by which Metzger agrees to buy all goods of a certain kind from the Bloch Queensware Company in Ft. Smith, Ark., and a clause by which the queensware company bound itself to sell to Metzger the goods upon certain terms, etc. There was a provision that all the goods purchased before May 1st should be paid for on that day, and those purchased after that date were to be paid for every 60 days. This contract was signed by the Bloch Realty Company, by Abe Bloch, Bloch Queensware Company, by Abe Bloch, president, and by Rudolph Metzger. It was also executed on the 28th of December, 1896. It is unnecessary to set out more of these contracts. The answer, in the second count, after setting them out in full, alleges that the two "were executed at one and the same time, and are separate parts of the same contract, and the same instrument of writing, and were intended to be one and the same contract, and were one and the same contract, and were made and entered into by the Bloch Realty Company and the plaintiff and the defendant for the mutual profit and benefit of all the parties to the said contract." It further alleges that all the goods sold by appellant to appellee, and embraced in the suit, were sold under and by virtue of these contracts, and in no other manner. It is then alleged that it was agreed and understood by all the parties at the time that all sums due by appellee for goods sold to him by the queensware company during the life of the contracts should be credited by whatever was due Metzger from the realty company "for work and labor in and on the carpenter work of said building, and for the superintendence of said building," and the balance, whichever way it happened to fall, be paid in cash by the party owing it. On this construction of the contract, Metzger claims a set-off of $730 as the balance due him by the realty company under Contract A. He also sets up a further set-off of $1,750, which he alleges is due him from the realty company for superintending the building. At the trial Metzger introduced evidence tending to show that this latter sum was due him by virtue of an oral agreement with Abe Bloch, made at Cleveland, while the building was in progress, whereby he was to assume a more general supervision of the building than was contemplated in the original agreement, and was to receive extra compensation for same. Appellant requested a series of instructions to the effect that the two written contracts were separate and distinct, and that appellee could not set off in this action any demands he had against the Bloch Realty Company on the contract with it for building or superintendence. These were also refused. The court gave the following, among other, instructions: "(3) But if you find from the evidence that the written contract between Bloch Queensware Company and R. Metzger and the Bloch Realty Company and R. Metzger constituted but one and entire contract, then you should consider the counterclaim of the defendant, and the court tells you the burden of proving the counterclaim is on defendant. (4) If you find defendant is entitled to recover on his counterclaim, then you should allow him such sums as the evidence shows is due him for carpenter work, less all sums paid, if any, resulting from a failure to perform the carpenter work according to contract, and also a reasonable amount for extra services, if any, as superintendent of the building, if such services were rendered on demand or at the instance of the duly-authorized agent of both the Bloch Queensware Company or the Bloch Realty Company, unless such services were rendered, or to be rendered, free of charge." "...