Dunnington v. Frick Co.

• Decision Date: 16 February 1895
• Citation: 30 S.W. 212
• Parties: DUNNINGTON v. FRICK CO.<SMALL><SUP>1</SUP></SMALL>
• Court: Arkansas Supreme Court

Page 212

30 S.W. 212

DUNNINGTON v. FRICK CO.¹

Supreme Court of Arkansas.

February 16, 1895.

Appeal from circuit court, Independence county; James W. Butler, Judge.

Action by the Frick Company against E. M. Dunnington upon contract. Judgment for plaintiff, and defendant appeals. Affirmed.

Appellee's complaint alleges that it is a foreign corporation, organized under the laws of Pennsylvania; that it entered into a contract in writing with the appellant (the defendant below) by which he agreed to pay the appellee $1,400 for machinery which the appellee sold and delivered to him. The answer admits the execution of the contract, but alleges that the appellee agreed to set up the machinery in a workmanlike manner, within a stated time: that it failed to ship the machinery within the time agreed upon, and denies that it was set up by the appellee in a workmanlike manner. It alleges that the machinery was purchased for the purpose of ginning the cotton crop of 1887, which the appellee well knew; that it was agreed it should be set up and put in operation in time to do so; but that appellee neglected and failed to set it up till it was too late for the appellant to gin the crop of that year, by reason of which the appellant was damaged in the sum of $1,680. It further alleges that appellee is a foreign corporation, carrying on business in the state of Arkansas; that it has never complied with section 2, art. 12, of the constitution of Arkansas, or with the act of April 4, 1887; that the contract sued on was entered into in the state of Arkansas after appellee had commenced doing business therein, and more than 90 days subsequent to the act aforesaid. The appellee filed a reply, in which it is alleged, among other things, "that the plaintiff [appellee] did ship the said machinery on August 24, 1887, to its agent at Little Rock, Ark.; that by reason of delays the said machinery did not reach Little Rock until September, 1887." It denied that the appellant was delayed by appellee in operating his gin, or that he sustained any injury from its neglect. The issue as to the last paragraph of the answer was submitted to the court by agreement, on the pleadings, exhibits, and the testimony. Upon this issue the court made the following findings of fact and conclusions of law: "This cause coming on to be heard, it was agreed by the parties hereto that the issue made on the third paragraph of defendant's answer, to wit, that plaintiff was not entitled to sue in the courts of this state, because it had failed to comply with the law requiring foreign corporations to appoint an agent in the state upon whom summons and official process might be served, be submitted to the court sitting as a jury. The court finds that plaintiff, at the commencement of this suit, was a corporation doing business under and by virtue of the laws of the state of Pennsylvania, with principal place of business at Waynesboro, Pa.; that said corporation had not appointed an agent upon whom summons and other process might be served, as required by law of foreign corporations doing business in the state; that plaintiff's agent went to the home of defendant, in Independence county, and took an order for machinery, which plaintiff agreed to furnish defendant, sent said order to W. C. Raby, who had an office at Little Rock, and manager of the company's business in the state; that W. C. Raby forwarded said order to Waynesboro, Pa.; that machinery was shipped to themselves at Little Rock, and forwarded to Olyphant, Ark., by W. C. Raby; that the transaction did not constitute a doing business in the state, within the meaning of the act of 1887, and on this issue finds in favor of the plaintiff." Thereupon there was a jury trial on the other issues. The defendant introduced evidence tending to prove that the plaintiff had failed to comply with its contract to set up the machinery by a given time or in a workmanlike manner, and that, by reason of the failure in both particulars, he had been prevented from ginning the crop of that year; that the machinery described in the written order, as well as a cotton press embraced in the order, which the Frick Company agreed to set up for the defendant along with the other machinery so as to gin that year's crop, had been ordered by him for that purpose; that that fact was known to the Frick Company at the time the contract was entered into; and that the company undertook to furnish the machinery described in the written order, and to set up the whole for the purpose indicated; and that it failed to comply with its contract. The defendant testified that, if the gin could have run, it would have earned $30 a day, clear of expenses, for the ginning season, beginning the 1st of September, and lasting until December. That was the profit, he said, the gin should have made, based upon the supply, the number of bales that could be turned out, and the price of cotton that year. He ginned for a toll of one-twelfth of the cotton ginned. None of the witnesses ever knew of a gin being rented, though they had run gins in that locality for years. There was testimony that, when the gin should have been running, according to the plaintiff's contract, there was a large quantity of cotton stored at the gin to be ginned; that the cotton house and every available shelter was full, but that the machinery was not running, and it could not be ginned; that from one to three wagons came every day with cotton, and were turned off for the same reason. The appellee introduced testimony tending to show that it shipped the machinery as soon as the contract therefor was completed and accepted by it. Defendant, when on the witness stand, was asked these questions, which, upon plaintiff's objection, were ruled out by the court, to wit: "Q. Was there cotton enough there for you that season? (Objected to, sustained by court, and exceptions...