A. F. Shapleigh Hardware Company v. Hamilton

• Decision Date: 12 April 1902
• Citation: 68 S.W. 490,70 Ark. 319
• Parties: A. F. SHAPLEIGH HARDWARE COMPANY v. HAMILTON
• Court: Arkansas Supreme Court

68 S.W. 490

70 Ark. 319

A. F. SHAPLEIGH HARDWARE COMPANY v. HAMILTON

Supreme Court of Arkansas

April 12, 1902

Appeal from Pope Circuit Court, WILLIAM L. MOOSE, Judge.

Reversed.

Reversed and remanded.

W. E Atkinson and J. E. Cravens, for appellant.

A recovery as in assumpsit would have been proper. I Chitty Pl. 100; 58 Ark. 130; 41 Ark. 476; 40 Ark. 78; 42 Ark. 57; 46 Ark. 57. Any change may be made in the form of a complaint. §§ 5764-5769; 58 Ark. 612; 56 Ark. 603. The complaint was aided by the answer in this cause. 30 Ark. 249; 32 Ark. 386; 37 Ark. 551; 60 Ark. 70. Any defect of allegation in the complaint was cured by the proof. 54 Ark 289; 59 Ark. 215; 40 Ark. 352; 44 Ark. 524; 65 Ark. 422.

McKennon & Patterson, for appellee.

Appellant could not join inconsistent counts one seeking recovery by the affirmance of a contract and the other by its denial. Bliss, Code Pldg. § 122; 1 Estee, Pl. & Pr. § 315; 1 S.W. 498; 95 N.Y. 237; 31 Ohio St. 277; 49 Ark. 94; 118 N.Y. 387; 14 Barb. 601; 69 Mo. 329; 23 How. 189; 60 Mo. 511; 61 Mo. 489; 56 Mo. 416; 50 N.Y. 1; 51 N.Y. 108; 59 N.Y. 267; 2 S.W. 476; 61 N.Y. 583; 20 Pick. 41; 25 Ore. 311; 3 Nev. 195; 2 Nev. 249; 15 How. Pr. 223; 89 Ga. 154; 55 Ga. 112; 12 Abb. Pr. 300; 21 How. Pr. 289.

OPINION

BATTLE, J.

A. F. Shapleigh Hardware Company instituted an action against W. V. Hamilton. The complaint is as follows:

"The plaintiff states that it is a corporation, organized and doing business under the laws of Missouri, and that defendant was a merchant at Clarksville, Arkansas, and traded with the plaintiff, and during the year 1895 purchased goods of the plaintiff, through one W. J. Binley, and that, by a combination between the said Binley and the defendant, a large quantity of the plaintiff's goods was shipped to and received by the said W. V. Hamilton, at Clarksville, Arkansas, and were by him converted to his own use; that the same was done with the intent, on the part of the said Binley and the defendant, to defraud, cheat and swindle the plaintiff. Plaintiff says that the same was accomplished through a system of false invoices, whereby a great portion of the goods were never charged to the said defendant, and whereby other portions of the goods were charged at prices greatly below their real value and prices. The plaintiff files herewith a statement of the transaction between the said W. V. Hamilton, through the said Binley, with the plaintiff, which shows the amount of goods received by him and the value thereof, what portions of the same were not charged at all, and what portions were charged, but at prices below their value, which is marked "Exhibit A," and made a part of this complaint. The plaintiff states that the statement consists of four bills: One March 19, 1895, showing $ 6.05 not charged; one August 26, 1895, showing the amount not charged $ 1,005.35; and one August 28, 1895, showing the amount not charged $ 706.90; and one October 2, 1895, showing the amount not charged $ 31--making a total of $ 1,749.30. Plaintiff states that by virtue of these wrongs it has been damaged in the sum of $ 1,749.30. Wherefore it prays judgment for its damages so sustained, and for all other and proper relief."

Defendant's answer to the complaint filed April 6, 1897, is as follows:

"Defendant admits that plaintiff is a corporation, organized and doing business under the laws of the state of Missouri, and that he is a merchant at Clarksville, Arkansas, and during the year 1895 purchased goods from plaintiff, through one Binley, but denies that, by any combination or collusion between said Binley and himself, any quantity of plaintiff's goods were shipped to and received by him and converted to his own use with any intent, on defendant's part, to defraud, cheat or swindle plaintiff, or that he had any knowledge whatever of any false or fraudulent invoices of goods bought by him, through said Binley, of plaintiff, whereby any goods were never charged to him or whereby any goods were charged at prices below their real values, or the regular prices charged for same by plaintiff. Defendant states that in all his transactions with plaintiff, through said Binley, he dealt honestly and fairly, believing that plaintiff was fully advised and informed of all particulars as to every purchase of goods by him of them, through said Binley, and that all invoices received by him from plaintiff were apparently fair and regular, and if said Binley, as the agent and salesman, at any time had any purpose to cheat, swindle or defraud plaintiff through a system of false invoices, or otherwise, defendant never at any time had any knowledge of such purpose. Defendant further states that he made full payment to plaintiff for all goods purchased of it by him, through said Binley or otherwise, and denies that by any act of his, or any business transaction of his with plaintiff, through said Binley or otherwise, plaintiff has suffered any wrongs, or has been damaged in the sum of $ 1,749.30, or in any sum whatever, or that he is indebted to plaintiff in any sum whatever; and he prays that plaintiff recover nothing in this suit, and that he have judgment against plaintiff for all costs in this behalf expended."

On December 9, 1897, plaintiff asked and obtained leave to amend its complaint, and accordingly amended it as follows:

"The plaintiff, by way of amendment to its original complaint filed herein, states that, in addition to the amount of goods received by the defendant in manner and form as stated in the original complaint, he procured and received from the plaintiff two other bills of goods which were never entered upon the plaintiff's books nor paid for by the defendant, and which are not embraced in the statement of goods so received, filed as "Exhibit A" to the original complaint, which said goods he received on the 26th and 28th of August and October 2, 1895, and it files herewith itemized statements of the goods so received or shipped on said days and not embraced in the statement filed with the original complaint, marked "Exhibits B," "C," and "D," which said goods were of the value of $ 919.33. Whereupon plaintiff says that, by means of the wrongs mentioned in its original and this, its amended, complaint, it has sustained damages in the sum of $ 2,799.33. Whereupon it prays judgment against said defendant for said sum and for all other and further proper relief."

The issues in the case were tried by a jury; and the plaintiff adduced evidence tending to prove the allegations of its complaint; and the defendant, in his behalf, produced evidence tending to prove the statements contained in his answer, and that $ 1,331.50 of the purchase money were paid by him for the goods to the traveling salesman and agent of plaintiff the day after they were ordered and before delivery.

At the request of the plaintiff the court instructed the jury in part as follows:

"2. If, from the evidence, you believe there was a combination or conspiracy between the defendant and Binley, as alleged in the complaint, to defraud or cheat the plaintiff in the sale of the goods made to him by Binley, then he, the defendant, should be made to account for and pay for the goods obtained their fair value, and your verdict should be the sum of their value, with interest at 6 per cent. from the date of maturity of the debt, less the amount shown to have been paid."

And refused to instruct, at its request, as follows: "If, however, from the evidence, you believe there was no conspiracy between the defendant and Binley, and the defendant, in making the purchases, dealt fairly and honestly, without any knowledge of the purpose of Binley to cheat and defraud the plaintiff, if he had such purpose, through a system of false invoices or otherwise, as he alleges in his answer, then the defendant should be made to account and pay for the goods at the prices for which he bought them; and if the evidence discloses that the goods have been fully paid for by the defendant to plaintiff, your verdict should be for him; but if not, your verdict should be for the plaintiff for the amount not paid, with interest thereon at 6 per cent. from date of purchase."

Other instructions were given at the request of plaintiff, and others were asked by it and...