Marion Hotel Company v. Dickinson

• Court: Arkansas Supreme Court
• Writing for the Court: MCCULLOCH, C. J.
• Citation: Marion Hotel Company v. Dickinson, 216 S.W. 1049, 141 Ark. 188 (Ark. 1919)
• Decision Date: 15 December 1919
• Docket Number: 48
• Parties: MARION HOTEL COMPANY v. DICKINSON

216 S.W. 1049

141 Ark. 188

MARION HOTEL COMPANY v. DICKINSON

No. 48

Supreme Court of Arkansas

December 15, 1919

Appeal from Pulaski Circuit Court, Third Division; G. W. Hendricks Judge; affirmed.

Judgment affirmed.

Cohn Clayton & Cohn, for appellant.

1. The contract lacked mutuality and definiteness and was terminable at the will of either party. 64 Ark. 398; 110 Id 444; 212 S.W. 313; 96 Ark. 184; 68 Id. 276, 526; 35 Id. 156; 100 Id. 510; 124 Id. 355; 212 S.W. 330; 1 Elliott on Cont., p. 393; 38 A. & E. R. Cases 16; 6 R. C. L., p. 691, § 96; 155 N.W. 319; 42 N.E. 386; 59 P. 146; 28 S.E. 998; 47 L. R. A. 343; 237 F. 860; 194 Id. 324; 212 S.W. 313, 330. In view of these authorities a peremptory instruction should have been given for defendant.

2. The court improperly instructed the jury as to the measure of damages. 79 Ark. 338; 55 Id. 376; 55 Id. 409; 70 Id. 42; 2 Id. 397. Future profits are not recoverable. 103 Ark. 584-8; 111 Id. 474-483-4.

3. It was error to exclude the testimony of H. A. Scott. 39 Ark. 580-3; 33 Id. 276, 284; 66 Id. 37.

Lewis Rhoton and Carmichael & Brooks, for appellee.

1. The cases cited for appellant are not in point. Here there was a contract as the jury found, and it did not lack mutuality and appellee was entitled to a year's notice. 104 Ark. 466, 474; 94 Id. 9; 64 Id. 398; 84 Am. St. 52; 51 Id. 301-303; 104 Ark. 466; 35 L. R. A. 512.

2. The court properly instructed the jury. 69 Ark. 219, 223; 78 Id. 336; 80 Id. 228; 91 Id. 427; 95 Id. 363; 97 Id. 522; 103 Id. 584; 78 Id. 345; 103 Id. 548; 8 L. R. A. (N. S.) 257 and notes.

3. Scott's testimony was properly excluded.

OPINION

MCCULLOCH, C. J.

Marion Hotel Company, a domestic corporation engaged in operating a hotel in the city of Little Rock, entered into a written contract with appellee for the removal and use by the latter of all of the trash and garbage accumulating at said hotel. The contract recited a cash consideration of one dollar, and mutual obligations of the respective parties, one to permit the other to remove the trash and garbage, and the other to remove it twice per day from the hotel and "to return all silver, towels and other material belonging to the hotel company." The contract also specified that the lids of the garbage cans were not to be removed while being hauled, and that the requirements of the government with respect to sanitary rules were to be observed The contract was dated December 24, 1917, and did not specify any period of duration, but concluded with the following paragraph:

"This agreement is to begin on the first day of January, 1918, and continue in force as long as Dickinson & Wilbourn handle it satisfactorily to the Marion Hotel Company."

The contract was executed by Mr. Everett, the manager for the Marion Hotel Company, and the firm of Dickinson & Wilbourn, but later Wilbourn retired from the firm, and appellee Dickinson alone undertook to perform the contract, and he continued in the performance of the contract until July 17, 1918, when appellant gave notice of a discontinuance of the permission extended to Dickinson to take the trash and garbage.

Preparatory to performance of the contract appellee established a pasture and pens at a place a few miles out from the city limits of Little Rock for the purpose of keeping and fattening hogs and began the purchase and raising of hogs to be fattened for the market, expecting to use the garbage as feed. He procured wagons and other equipment to handle the garbage and kept two men in his employment engaged in doing the hauling. Appellee testified on the trial of the cause that shortly after the contract was entered into he called the attention of appellant's manager to the fact that the contract specified no particular term or duration, and that he expected to equip himself to handle about 300 hogs at a time, and that he could not afford to thus equip himself for handling the business unless he was assured that the contract would not be rescinded short of a year's notice, and that the manager then agreed that the contract should not be revoked without such notice.

This is an action instituted by appellee for breach of the contract. Appellant in its answer admitted the execution of the writing set forth in the complaint, but denied that there was any oral contract subsequent thereto. Appellant admits that it rescinded the contract, which it contends it had a right to do under the written contract. The answer also contains appropriate denials concerning the extent and amount of damages alleged to have been sustained by appellee by reason of the alleged breach of the contract. There was a trial before a jury which resulted in an award of damages in favor of appellee in the sum of $ 2,500.

Appellant contends for reversal on three grounds set forth in the brief as follows:

"First. That the contract upon which appellee (plaintiff below) based his cause of action lacked mutuality and definiteness and was terminable at the will of either party.

"Second. That the lower court improperly instructed the jury as to the measure of damages.

"Third. That the testimony of H. A. Scott, set forth in paragraph 3 of the motion for a new trial, was improperly excluded."

The argument of appellant in support of its first ground for reversal is, we think, sound so far as it applies to the written contract. The obligations expressed in the contract lack mutuality in that no time for performance was specified, and it was therefore terminable at the will of either party. St. L., I. M. & S. Ry. Co. v. Matthews, 64 Ark. 398, 42 S.W. 902. The writing specified that it was to remain in force "as long as Dickinson & Wilbourn handle satisfactorily to the Marion Hotel Company," but there was no expressed obligation on the part of Dickinson & Wilbourn to continue for any specified length of time, and no obligation could be implied on their part to continue as long as the service remained satisfactory to the Marion Hotel Company. It is not one of those kind of contracts where a reciprocal obligation is implied, as has been held in numerous decisions of this court. Thomas-Huycke-Martin Co. v. Gray, 94 Ark. 9, 125 S.W. 659; Keopple v. National Wagonstock Co., 104 Ark. 466, 149 S.W. 75.

The same contention is made by learned counsel for appellant with respect to the alleged oral addition to the contract. In other words, the contention is that the subsequent verbal agreement that the contract should not be rescinded without giving a year's notice is open to the same objection that it lacks mutuality in that one of the obligors was not bound to continue the service or to give notice of a rescission of the contract.

We are of the opinion that the contract for the giving of a year's notice by one of the parties necessarily implied a reciprocal obligation on the part of the other party to continue the service for at least the full period of the notice, that is to say, for one year, and that it amounted to a mutual agreement for at least one year. The exaction by appellee of a promise on the part of the hotel company not to rescind the contract without giving a year's notice necessarily implied that he would carry on that service at least a year from that time. It is unnecessary to determine whether or not there was sufficient mutuality in the contract to extend it longer than one year.

Our conclusion, therefore, is that there was a binding contract between the parties which was enforceable and that appellant was liable for damages for the breach.

The jury found upon legally sufficient evidence that the contract was performed "satisfactorily to the Marion Hotel Company" and that appellant broke the contract without sufficient cause.

The court gave two instructions on the measure of damages, as follows:

"No. 2. If you find from the evidence that the defendant breached the contract on some ground other than the work was not carried out to its satisfaction, then you will find for the plaintiff such damages as you may find he sustained by breach of the contract, and in ascertaining the proper amount you may take into consideration whatever profits you may find from the evidence to a reasonable certainty he would have made if the contract had not been breached. And if you find from the evidence that the plaintiff was to have a year's notice before the contract should be terminated and the garbage and trash given him as long as h...