A. M. Collins Manufacturing Company v. Lawrence County Bank
| Decision Date | 28 April 1924 |
| Docket Number | 344 |
| Citation | 261 S.W. 27,164 Ark. 133 |
| Parties | A. M. COLLINS MANUFACTURING COMPANY v. LAWRENCE COUNTY BANK |
| Court | Arkansas Supreme Court |
Appeal from Lawrence Circuit Court, Eastern District; Dene H Coleman, Judge; affirmed.
Judgment affirmed.
W P. Smith and Lester L. Gibson, for appellant.
A principal cannot enter into a contract through its agent, and then, in order to breach the same, set up the defense of ultra vires. 77 Ark. 172; 82 Ark. 86; 68 Ark. 299; 138 Ark. 111. A foreign corporation is not doing business within the meaning of the statute by entering into a contract with a resident of the State where the contract is made to be performed elsewhere. 55 Ark. 625; 61 Ark. 1; 196 Ark. 465. The court erred in instructing a verdict for the defendant. 232 S.W. 582; 148 Ark. 655.
Ponder & Gibson, for appellee.
The parties, by requesting a peremptory instruction, assume the facts to be undisputed, and submit to the judge the determination of the inferences to be drawn therefrom. 134 Ark. 560; 136 Ark. 329; 139 Ark. 517; 138 Ark. 172; 131 Ark 133; 134 Ark. 345; 150 Ark. 138; 155 Ark. 506. The tender by the appellee of $ 94.50 in full payment and the acceptance thereof by the appellee amounted to an accord and satisfaction of appellant's claim. 1 Ruling Case Law, 196, § 32; 94: Ark. 158; 98 Ark. 269; 100 Ark. 251; 122 Ark. 212; 148 Ark. 512.
This is an action by the A. M. Collins Manufacturing Company, hereinafter referred to as the company, owner and operator of the Collins Service, against the Lawrence County Bank, for certain services based on contract. The company is a Pennsylvania corporation, and operates a general advertising business. In July, 1921, the company and the bank entered into a written contract whereby the company agreed, for a period of eighteen months, beginning October 15, 1920, to furnish the bank certain service and material, and the bank agreed, in consideration therefor, to pay $ 29 cash monthly for the period of eighteen months. The company alleged that the bank made payments as agreed for the months of October, November and December, but thereafter defaulted in the payments and repudiated the contract, whereupon the company sued for the unpaid balance. The bank admitted the failure to make payments maturing after December, and sought to excuse this failure by showing that the company had breached the contract by failing to furnish the service and material as required by the contract.
At the conclusion of all the testimony each side asked that a verdict be directed in its favor, and neither asked any other instructions, and the court found for the defendant, and directed the jury to return a verdict in favor of the bank, and the company has appealed.
The effect of the facts stated, under numerous decisions of this court, was to withdraw the submission of the case from the jury and submit its decision to the court, and, this having been done, the appeal is to be considered by us as if the case had originally been submitted to the court without a jury, and we are required to determine the question only whether the testimony is legally sufficient to support the judgment of the court.
Under the terms of the contract the company agreed to ship to the bank certain supplies each month, and the contract provided that the shipment should be at the risk of the bank. The bank failed to receive the shipments shown to have been made in December and January, but it is insisted that the testimony clearly shows that the shipments were made, and that the bank was not absolved from its liability under the contract because of the miscarriage of the shipments.
The company agreed, however, to supply certain service through the mails in addition to the shipment of the material by freight.
The contract is quite lengthy, and specifically sets out what the service was to be, it being designated in schedules A, B, C D, E, F, G and H. Some of the matter to make this service effective came by freight, and a portion of it was...
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