Friend v. Smith Sons' Gin & Machine Co.

• Decision Date: 28 April 1894
• Citation: 26 S.W. 374
• Parties: FRIEND v. SMITH SONS' GIN & MACHINE CO.
• Court: Arkansas Supreme Court

Page 374

26 S.W. 374

FRIEND v. SMITH SONS' GIN & MACHINE CO.

Supreme Court of Arkansas.

April 28, 1894.

Appeal from circuit court, Lee county; Grant Green, Jr., Judge

Action by Smith Sons' Gin & Machine Company against E. F. Friend on a contract of guaranty. Defendant died pending the action, and Mary E. Friend, administrator of his estate, was substituted in his stead. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was instituted and determined in the Lee county circuit court at its spring term, 1891, resulting in a judgment in favor of the plaintiff company against the defendant, as the administratrix of the estate of her deceased husband, E. F. Friend, (against whom this action was instituted), for the sum of $310 and costs, from which judgment defendant appealed.

E. F. Friend, a citizen of Lee county, on the 8th of May, 1889, entered into a contract with appellee company, acting through its treasurer and lawful agent, E. L. Smith, to become its agent to sell its gins, feeders, condensers, and other machinery in that line in the territory of Lee county; the appellee company being a corporation organized and operating under the laws of the state of Alabama, with domicile at or near the city of Birmingham, in that state, and not having complied with the provisions of the act of the general assembly of this state approved April 4, 1887, which required foreign corporations, as a condition upon which to do business in this state, to cause the certificate of its president to be filed in the office of the secretary of state, designating an agent, a citizen of this state, upon whom process may be served, and also its principal place of business in the state, and, on failure to do so, all its contracts with citizens of the state to be void. The contract of agency stipulates the commissions to be paid the agent, the manner of sales on credit, and that the agent, Friend, should guaranty the punctual payment of all notes he should take, by proper indorsement of the same. This was made upon a consideration expressed. Friend made a sale in September, 1889, to J. R. and J. A. Vineyard, of said county, for the aggregate sum of $357, one-fourth in cash, one-fourth by note due 1st November, 1889, and one-fourth January 1, 1890, and one-fourth November 1, 1890; all bearing 10 per cent. per annum interest from date until paid. The contract required him to sell for cash when practicable, and when he should sell on a credit it should be to good and responsible men, one-fourth due 1st November, 1889, one-half due 1st January, 1890, and one-fourth due 1st November, 1890; all to bear 10 per cent. interest from date. Friend failed to indorse these notes according to his agreement, but immediately forwarded them to the company at Birmingham, as was provided in his contract. The company at once returned them for his indorsement. This communication he never answered, but kept the notes for collection, until some time in January, 1891, when they were demanded of him by the company, through their state agent, J. G. W. Smith, and surrendered to him. Nothing having been paid on the notes, one of the Vineyards having died leaving no estate, and the other being insolvent, this suit was brought upon the guaranty of Friend. The property sold to the Vineyards, as stipulated in the note, was to remain the property of the vendor until fully paid for, and, on default of the payment of either note, the others remaining unpaid might become due at the option of the holder. The property was shipped from Birmingham "f. o. b." (free on board the cars), on the order of Friend as agent selling the same, and the vendees were to pay all freights from points of shipment to points of destination. Other facts will be noticed in the opinion should it become necessary to do so.

Brown & Robertson, for appellant. McCulloch & McCulloch, for appellee.

BUNN, C. J. (after stating the facts).

The appellant assigns four several errors for which she contends that the judgment of the court below should be reversed. They are as follows, to wit: "(1) The judgment of the lower court is void for want of jurisdiction of the subject-matter. (2) It is erroneous, and should be reversed, because this is an action sounding in damages ex contractu as against Friend, and, if the plaintiff's negligence or want of diligence in prosecuting by all lawful methods its claims against the Vineyards was the cause of, or contributed...