Corning Roller Mills v. William Kelly Milling Co.

• Court: Arkansas Supreme Court
• Writing for the Court: WOOD, J.
• Citation: Corning Roller Mills v. William Kelly Milling Co., 250 S.W. 895, 159 Ark. 1 (Ark. 1923)
• Decision Date: 14 May 1923
• Docket Number: 375
• Parties: CORNING ROLLER MILLS v. WILLIAM KELLY MILLING CO

250 S.W. 895

159 Ark. 1

CORNING ROLLER MILLS v. WILLIAM KELLY MILLING CO

No. 375

Supreme Court of Arkansas

May 14, 1923

Appeal from Clay Circuit Court, Western District; W. W. Bandy Judge; affirmed.

Judgment affirmed.

C T. Bloodworth, for appellant.

There is no testimony showing that appellant assented to or ratified the assignment of the contract, which, by its terms was not assignable. Parol testimony was not competent, being within statute of frauds. 25 R. C. L. 642, par. 272, 644, par. 274, 645, par. 276. The court erred in refusing to exclude the letters attached to depositions as exhibits. Erred also in giving instructions 1, 2, 3, 7 and 8, and in refusing appellant's requested instructions 1 to 9 inclusive.

F. G. Taylor, John R. Beeching, John F. Rhodes, and William H. Burnett, for appellee.

Contract could be assigned. 1 Williston on Contracts, 779, 789; 5 C. J. 876. The testimony shows assignment of contract was assented to and ratified. 1 Williston on Contracts, 790; 55 Ind.App. 605, 104 N.E. 519; 21 N.J.Eq. 479; 176 Mass. 237, 57 N.E. 380. Statute of frauds not involved. 5 C. J. 989. Consented to estoppel. 21 R. C. L. 930, 5 C. J. 940; 219 Mass. 304, 106 N.E. 990; 173 Mass. 460, 53 N.E. 906; 83 Mo.App. 576.

OPINION

WOOD, J.

The William Kelly Milling Company (hereafter called appellee) a corporation of Kansas, engaged in the sale of mill products in this State, purchased of the Reno Flour Mills Company of Kansas City its plant before the 13th of October, 1920. On the 18th of October, 1920, it also purchased a contract which the Reno Flour Mills Company had with the Corning Roller Mills (hereafter called appellant) at Corning, Arkansas, of August 25, 1920. Under that contract the Reno Flour Mills Company agreed to sell to the appellant 310 barrels of "Craftsman" flour at $ 11.60 per barrel, to be shipped within sixty days. The contract, across its face, carried the following indorsement: "For value received we hereby assign the within contract to the William Kelly Milling Company. Reno Flour Mills Co., By C. O. Heinley."

In the body of the contract, among others, is the following provision: "Contract not subject to change: That there are no conditions, representations, warranties, oral or otherwise, and that there shall be no assignment or cancellation of this contract, except as herein stated, and that no agent or representative has authority to modify the printed terms of this contract."

On October 18, 1920, the appellee wrote to the appellant advising the latter that it had purchased its contract with the Reno Flour Mills Company, and advising the appellant that, unless appellee heard from the appellant to the contrary by wire, appellee would arrange to ship the flour as per appellant's contract with the Reno Flour Mills Company. The appellant answered on October 20 and acknowledged the receipt of the letter of the appellee and stated, among other things, as follows: "We note that you have control of the Reno mill. In regard to the flour that we have booked with you for shipment October 25, we do not see how we can use this flour." Then, after assigning reasons for this action, the letter concludes: "We will have to ask that you cancel our order." The letter was signed "Corning Roller Mills, by Ed." On the 23rd of October the appellee wrote the appellant in answer that it had bought high-priced wheat for the purpose of filling appellant's order, and therefore could not consider cancellation, but would be willing to extend the shipping time thirty days. In answer the appellant wrote appellee as follows: "We are in receipt of your letter of the 23rd, and in reply beg to state we will appreciate it if you will hold our flour for us thirty days and ship same latter part of November, as you stated." The appellee in answer to the last letter wrote: "As requested, we will withhold shipment of your order until the last of this month." On November 20 the appellant wrote the appellee detailing the financial straits of appellant, and concluded the letter by requesting the appellee to cancel its order. In reply, the appellee stated that it could not cancel the order as requested, but "must insist either upon your accepting the contract as entered into or make a cash settlement for the difference between the contract price and the price at which we would be obliged to resell the flour, which, on this date, would amount to $ 914.59." The letter concluded by requesting the appellant to answer by return mail which method it preferred.

After the above correspondence the appellee, through the Miller's Exchange of Kansas City, Missouri, endeavored to have the appellant accept the order. Appellant wired the exchange on December 4, 1920, "Extend shipping period on car of flour." On December 6 the appellee again wrote the appellant that they had extended the order for shipment of flour on contract until December 24. On December 25, 1920, appellant wired appellee stating, "Just received notice you were shipping us car of flour," and further stating that it could not handle the car just then, and asking appellee to divert it, as it would be left in the hands of the railroad on arrival. Appellant also on that day wrote appellee telling it that it should not have loaded the car without ascertaining whether the appellant would take up the draft and unload the car. On December 27, 1920, the appellee wrote to the appellant that it had sent forward the car on the 25th, and that the matter was now out of its hands. The appellant in answer wired the appellee that the car would be refused on arrival.

This action was instituted by the appellee against the appellant. The appellee, in its complaint, set up the contract and the purchase thereof by it, and alleged that, for valuable consideration, it was assigned to the appellee by consent of the appellant, and that the appellant was due the appellee the sum of $ 725.15 for loss growing out of breach of the contract. The appellant answered, and admitted that they had entered into a contract with the Reno Flour Mills Company, but alleged that such contract was not assignable, and denied that it had consented to the assignment, and denied any liability to the appellee.

The appellee introduced the correspondence by letter and telegram as above set forth. A witness for the appellee testified that it had sustained a loss of $ 725.15 by reason of the refusal of appellant to accept the flour. One of the witnesses for the appellee (Anderson) testified that he was agent of the appellee, and as such on December 3, 1920, went to Corning, Arkansas, for the purpose of settling the controversy between appellant and the appellee. He talked with Bennett, one of the members of the firm of the appellant, and Bennett told witness that at that time he could not take any of the flour; that they then had too much on hand. Witness asked Bennett what date the appellee could ship the flour, and Bennett replied that he could take care of it along about the 20th of December, and it was agreed that the 24th should be the date of shipment.

D. L. Bennett testified, on behalf of the appellant, that he was a member of the firm. He stated that he didn't know anything about the letters introduced in evidence by the appellee referring to the alleged assignment to the appellee of the appellant's contract with the Reno Flour Mills Company. He denied that he had any knowledge of letters purporting to have been written by the appellant to the appellee requesting the latter to hold the flour order for appellant and ship the same the latter part of November, as stated in one of the letters. Witness never wrote such a letter, and didn't authorize any one else to write a letter to that effect. Witness admitted having a conference with Anderson, but denied that he had told Anderson that he would accept the flour. The appellee sent witness a contract to sign, but he refused to sign the same.

Anderson also was called as a witness for the appellant, and identified a letter written by the appellee to the appellant of January 5, inclosing new contracts for appellant to sign, and suggesting to appellant that, instead of extending the time on the original contract, it would be better to cancel that and enter into a new contract dated as of January 5, to run for sixty days.

Beard testified that he and Bennett were the partnership composing the firm of appellant. He testified that he did not authorize any one to sign the letter purporting to be the letter of his firm dated October 29, 1920, requesting the appellee to hold the flour for a...