Furst & Thomas v. Brewster

• Decision Date: 25 November 1929
• Docket Number: (No. 12.)
• Citation: 21 S.W.2d 863
• Parties: FURST & THOMAS v. James C. BREWSTER et al.
• Court: Arkansas Supreme Court

21 S.W.2d 863

FURST & THOMAS v. James C. BREWSTER et al.

(No. 12.)

Supreme Court of Arkansas.

November 25, 1929.

Appeal from Circuit Court, Bradley County; Turner Butler, Judge.

Danaher & Danaher, of Pine Bluff, for appellant.

J. C. Clary and B. Ball, both of Warren, for appellees.

McHANEY, J.

This is a suit by appellants on a written contract with appellee Brewster, on which the other appellees are guarantors for Brewster, to recover a balance alleged to be due them for certain merchandise which they claim they sold to Brewster and for which they have not been paid. The contract sued on is identical in every respect, except the name of the "salesman" and the date thereof, with the contract sued on in Furst & Thomas v. Hartzell, 172 Ark. 1118, 291 S. W. 828. Since it is the same contract as that, we deem it unnecessary to set it out in this opinion. We there held that the contract was ambiguous, in that it was uncertain as to whether it was a contract of purchase and sale, or one of agency, and, being ambiguous, it was proper to submit the question of the effect of the contract to a jury for its determination. Appellants are the same persons in this case as in that, and they now urge, as they did in the former case, that the contract is not ambiguous; that it is a contract of sale and purchase and not of agency, and should be so declared as a matter of law; and that the former decision of this court in the Hartzell Case is unsound. in conflict with former decisions, and should be overruled. We cannot agree with appellant. The same contention now made was strenuously urged in the former case, and, with all the light now before us, we took the view there expressed and see no good reason to reverse ourselves and overrule that case. We therefore decline to do so.

It is next said the court erred in giving certain instructions, in refusing to give certain others, and in modifying and giving as modified certain others. These assignments are so numerous it is impractical to set them out and comment on them separately. We have examined all the instructions, those given and refused, as well as those modified, and are of the opinion that the court fully and fairly instructed the jury on the questions raised.

The main question in the case is whether the contract is ambiguous, and this has already been decided against the appellants.

We find no error, and the judgment must be affirmed.

BUTLER, J., not participating.