Gary Braswell & Associates, Inc. v. Piedmont Industries, Inc., 84-2164

• Decision Date: 25 September 1985
• Docket Number: No. 84-2164,84-2164
• Citation: 773 F.2d 987
• Parties: GARY BRASWELL & ASSOCIATES, INC., Appellee, v. PIEDMONT INDUSTRIES, INC., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 987

773 F.2d 987

GARY BRASWELL & ASSOCIATES, INC., Appellee, v. PIEDMONT INDUSTRIES, INC., Appellant.

No. 84-2164.

United States Court of Appeals,

Eighth Circuit.

Submitted March 15, 1985.

Decided Sept. 25, 1985.

Floyd M. Thomas, Jr., El Dorado, Ark., for appellant.

David F. Guthrie, El Dorado, Ark., for appellee.

Before JOHN R. GIBSON, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BOWMAN, Circuit Judge.

BOWMAN, Circuit Judge.

This case involves a lawsuit by Gary Braswell & Associates (Braswell) against Piedmont Industries (Piedmont) for breach of contract. Braswell contended at trial that Piedmont had agreed to pay Braswell $30,000 per year plus $200 monthly showroom support, in return for which Braswell was to become Piedmont's agent for a certain line of clothing in Arkansas, Texas, Louisiana, Oklahoma, and Mississippi. Piedmont counterclaimed for Braswell's alleged conversion of $9,418 of clothing samples.

Following a non-jury trial, the District Court ¹ found some merit in both Braswell's claim and Piedmont's counterclaim, and awarded Braswell $17,187.91. ² Piedmont contends on appeal that the District Court: 1) erred in failing to find that the contract with Braswell was barred by the statute of frauds; 2) erred in failing to find that Piedmont was entitled to terminate the contract at will; 3) erred in finding that Braswell had received only $10,503.09 from Piedmont prior to the breach; and 4) erred in valuing the amount of Piedmont's counterclaim. We affirm.

The District Court stated initially that under Arkansas law, an oral contract may be removed from the statute of frauds by clear and convincing proof of the existence of the contract, citing Bramlett v. Selman, 268 Ark. 457, 597 S.W.2d 80, 83 [1980].³ See also Pfeifer v. Raper, 253 Ark. 438, 486 S.W.2d 524, 524 (1972); Hudspeth v. Thomas, 214 Ark. 347, 216 S.W.2d 389, 389 (1949). The District Court then held that Braswell had clearly and convincingly established the existence of an oral contract with Piedmont for a one-year period, during which time Piedmont was to pay Braswell a $30,000 guarantee plus $2,400 in showroom support. We have examined the record and we cannot say that the District Court's finding that the oral contract was clearly and convincingly proved is clearly erroneous. Thus, we conclude that the District Court did not err in holding that the contract was taken out of the statute of frauds.

Because we have concluded that the District Court did not err in finding that the evidence clearly and convincingly established a one-year contract, we must likewise reject Piedmont's second contention that it was entitled to terminate the contract at its will. Only a contract of indefinite duration may be so terminated. Griffin v. Erickson, 277 Ark. 433, 642 S.W.2d 308, 310 (1982).

With respect to Piedmont's third contention, the District Court held that it was undisputed that the amount of money Braswell received before termination was $10,503.09. Braswell testified that his deposits of Piedmont checks totaled $10,503.09. Piedmont contends that a form filed by Piedmont with the Internal Revenue Service, introduced at trial by Braswell, shows that Piedmont had actually paid Braswell $15,249.25.

Piedmont's counsel attempted to impeach Braswell's claim that he had been paid only $10,503.09 with Piedmont's Internal Revenue Service form that indicated that Braswell had actually received $15,249.25 from Piedmont. Braswell offered to explain the difference between the amounts, but Piedmont's counsel did not pursue the matter. Piedmont did not put on any other evidence that tended to show that it had actually paid Braswell $15,249.25 in cash pursuant to the $30,000 guarantee. ⁴ We therefore cannot conclude that the...