Bloch Queensware Company v. Metzger

• Decision Date: 30 November 1901
• Citation: 65 S.W. 929,70 Ark. 232
• Parties: BLOCH QUEENSWARE COMPANY v. METZGER
• Court: Arkansas Supreme Court

65 S.W. 929

70 Ark. 232

BLOCH QUEENSWARE COMPANY v. METZGER

Supreme Court of Arkansas

November 30, 1901

Appeal from Sebastian Circuit Court, STYLES T. ROWE, Judge.

Reversed.

STATEMENT BY THE COURT.

The Bloch Queensware Company is an Arkansas corporation, doing business at Fort 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 Blotch, the president of the Queensware Company, was also a member of the Realty Company. Metzger had a store at Fort 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 of the Realty Company for the purpose, 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 Fort Smith, Arkansas, 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 1 should be paid for on that day, and those purchased after that date were to be paid for every sixty 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 supeintending 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 the 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 superintendent. These were 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 and the Bloch Realty Company, unless such services were rendered, or to be rendered, free of charge.

"6. If during the time or after the execution of the written instrument, whether considered as one or two contracts, the Bloch Queensware Company and the Bloch Realty Company and R. Metzger made an oral agreement, or had an understanding, independent of the written argument[s], that the amount owed to R. Metzger by the Bloch Realty Company for work and labor under a written contract should be credited on the account owed the Bloch Queensware Company for goods, wares and merchandise purchased by R. Metzger, then you should ascertain how much is due plaintiff on the account sued on, and how much is due defendant on the counterclaim in this case, and strike a balance between the account and the counterclaim, and find your verdict for the party in whose favor the balance shall be found."

The answer prayed that the Bloch Realty Company be made a party plaintiff, but we do not find that the court made any order to that effect. The appellant concedes that the correct amount of the account was $ 1,636.22. The verdict of the jury was for $ 156.54 in favor of appellant.

Judgment reversed.

Mechem & Bryant, for appellant.

The evidence fails to show any contractural liability on appellant's part for the amount due appellee by the Realty Company. Several papers will be construed together as one contract only when all are between the same parties. Jones, Const. Cont. 281 et seq.; 1 Ch. Cont. 126, 127; 13 Am. St. Rep. 344, 351. Parol evidence was improperly admitted to prove an understanding as to credits to be made on appellant's account for work done under the contract with the Realty Company. Jones, Const. Cont. 184, 188-198, 199-217, 233-238, 244-251; 98 N.Y. 288; 44 N.J.L. 331; 45 Ark. 177; 4 Ark. 154; 38 Ark. 344; 9 Ark. 501; 29 Ark. 544; 15 Ark. 543; 24 Ark. 210; id. 265; 35 Ark. 156; 30 Ark. 186; 21 Ark. 69; 25 Ark. 191; id. 309; 13 Ark. 593; 20 Ark. 293; 19 Ark. 690; 11 Am. St. Rep. 889, 893; id. 394. Any assumption by appellant of liability to appellee on his contract with the Realty Company would have been ultra vires. 23 Ark. 301, 302, 21 Ark. 305; 58 Ark. 407, 427; 63 Ark. 418; 62 F. 360; 131 Mass. 258; 10 Mo. 565; 85 Tenn. 703; 7 Wis. 59; 15 N.Y.S. 57; 61 N.H. 589; 83 Mich. 200; 71 F. 797; 57 F. 51; 85 Tex. 416; 82 Va. 913; 165 Mass. 120; 18 N.Y.S. 454; 92 Ala. 427; 63 Ga. 186; 40 Ga. 582; 63 N.H. 145; 37 Me. 256; 29 Me. 123; 83 Ala. 115; S. C. 3 Am. St. 695; 93 Ala. 325; S. C. 92 id; 427; 122 N.Y. 135; 144 N.Y. 166; 121 Ill. 530; 130 Ill. 268; 12 Mich. 389; 74 F. 363; 54 Conn. 357; 85 Me. 532; 70 Miss. 669; 87 Ia. 733; 107 Cal. 8; Brice, Ultra Vires, 762-4; 7 Am. & Eng. Enc. Law (2d Ed.), 754-758, 695-719, 727-8; 746, 488-792.

Read & McDonough, for appellee.

The contracts made by appellee with appellant and the Realty Company were really one entire contract. 45 Ark. 28; 26 Ark. 240; 28 Ark. 391; 49 Ark. 320. Oral evidence was admissible to show the real understanding of the parties. 55 Ark. 115. The Realty Company was a necessary party. 49 Ark. 100; 24 Ark. 555; 38 Ark. 72. Since a motion therefor was made by appellee, and the Realty Company was treated as a party, it will be so considered here. 24 Ark. 326; 62 Ark. 262. The proof cures the defect of allegation as to the counterclaim for superintendency. 54 Ark. 289; 59 Ark. 215.

OPINION

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

First. The appellee introduced evidence tending to prove that he and Abe Bloch entered into a verbal contract by which appellee was to perform extra services as superintendent on the building in Cleveland, Ohio, and that he was to receive pay for such services from the appellant by a credit on his account with appellant for merchandise. This alleged agreement, it is claimed, was made at Cleveland, Ohio, sometime after the execution of the...