Gray v. General Const. Co.

Decision Date23 April 1923
Docket Number(No. 329.)
Citation250 S.W. 342
PartiesGRAY et al. v. GENERAL CONST. CO.
CourtArkansas Supreme Court

Appeal from Circuit Court, Prairie County; Geo. W. Clark, Judge.

Action by the General Construction Company against R. A. Gray and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Gregory & Holtzendorff, of Hazen, and Chas. B. Thweatt, of Little Rock, for appellants.

Coleman, Robinson & House, of Little Rock, for appellee.

SMITH, J.

Appellee brought suit to recover the balance due on a promissory note for $6,000 payable to its order, executed by appellants. There was a credit on the note, and no question was raised as to the balance due. The litigation arises out of the counterclaim filed by appellants, in which they allege that the execution of the note was procured by fraud as follows: The note was given for a road-building outfit, including 19 mules and horses, worth only about $1,500, but the sale of the outfit was made and the note executed in reliance upon the representation of the managing officers of appellee (a corporation) that the Sheridan lateral of the Spring Lake highway would be built at all events. Appellants offered testimony to the effect that they would have made $13,000 profit in the construction of the Sheridan lateral; that the contract to construct it was let to them at a price sufficiently high to afford a wide margin of profit, and this fact constituted the inducement for the purchase of the road-building outfit and was in fact a part of the consideration for the note.

The contract between the parties in regard to the road-building work was in writing and the relevant portions thereof read as follows:

"This contract made and entered into this January 31, 1921, between the General Construction Company, a corporation organized under the laws of the state of Tennessee, hereinafter known as the parties of the first part, and Gray & Patrick, of Hazen, Ark., hereinafter known as parties of the second part, witnesseth:

"For and in consideration of the prices hereinafter named, parties of the second part agree to do all the grading, grubbing and clearing yet to be done on the Sheridan lateral, and the Farrell lateral — providing the engineer and commissioners order same to go ahead — of the Spring Lake highway, and to do the same according to the plans and specifications now on file, and according to the contract of the parties of the first part with said Spring Lake road district which are made a part of this contract, the same as if they were set out in this contract, however, they are only attached and made a part of this contract. * * *

"It is further agreed that the party of the second part will immediately cover said work and to put sufficient force on same to complete fully the work on Sheridan lateral by June 1, 1921, but should the parties of the second part fail to do this, the party of the first part reserves the right under this contract to put a force to work to complete same in contract time.

"It is further agreed that the parties of the first part are to collect out of each month's estimate, one-half of the gross estimate, same to be not less than one thousand ($1,000.00) dollars per month, the same to be credited on the back of note for outfit.

"All interlining done before signing.

"Given under our hands and seals the day and date above written.

                                 "General Construction Co
                                    "By R. J. Lynch, V. P
                                 "Gray & Patrick
                                    "By J. B. Patrick."
                

It is insisted by appellants that the contract is unconditional as to the building of the Sheridan lateral, and that the proviso there found related only to the Farrell lateral, and that, if this is not the meaning of the writing, its meaning is ambiguous, and the cause should have been submitted on the oral testimony for the determination by the jury as to what was its meaning.

The court permitted testimony to be introduced on the part of appellants to the effect that the contract to build the Sheridan lateral was absolute, and that the only contingency was in regard to the construction of the Farrell lateral, and that a large profit would have been made had appellants been permitted to construct the Sheridan lateral. Testimony was also offered to the effect that the officers of appellee who negotiated the construction contract and the sale of the road-building outfit represented to appellants that the road improvement district had authorized the construction of the Sheridan lateral, and had sold bonds to cover the cost thereof, and these representations induced appellants to buy the outfit in payment for which the note...

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2 cases
  • Holly Sugar Corporation v. Fritzler
    • United States
    • Wyoming Supreme Court
    • 16 Febrero 1931
    ... ... Mills, ... (Ind.) 147 N.E. 300; Horton v. Foley, et al., ... (Okla.) 220 P. 907-908; Gray, et al. v. General ... Const. Co., (Ark.) 250 S.W. 342-344; Batesburg ... Cotton Oil Co. v ... ...
  • Hanford Produce Co. v. Clemmons
    • United States
    • Arkansas Supreme Court
    • 27 Marzo 1967
    ...v. McKim, 90 Ark. 520, 119 S.W. 824. While punctuation does not control construction, it is an aid thereto. Gray v. General Construction Co., 158 Ark. 641, 250 S.W. 342. An Act should be read as punctuated unless there is some reason to the contrary. Horack's Sutherland, Statutory Construct......

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