McGehee v. Cunningham

• Decision Date: 03 March 1930
• Docket Number: No. 177.,177.
• Citation: 25 S.W.2d 449
• Parties: McGEHEE et al. v. CUNNINGHAM.
• Court: Arkansas Supreme Court

25 S.W.2d 449

McGEHEE et al. v. CUNNINGHAM.

No. 177.

Supreme Court of Arkansas.

March 3, 1930.

Rehearing Denied March 31, 1930.

Appeal from Circuit Court, Sebastian County; J. Sam Wood, Judge.

Action by W. R. Cunningham against J. F. McGehee and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

Hardin & Barton, of Ft. Smith, for appellants.

Cravens & Cravens, of Ft. Smith, for appellee.

SMITH, J.

Appellee, plaintiff below, alleged as his cause of action against appellants the breach of a written contract of employment, whereby he had been damaged in the sum of $1,200. The contract upon which suit was brought was preceded by a correspondence, which involved the exchange of a number of letters, and while these letters cannot be considered for the purpose of altering or varying the terms of the written contract, they may be considered as showing the relative situations of the parties, and thus enable us to determine the meaning of the language employed by them in their written contract. Inter-Southern Life Ins. Co. v. Shutt, 175 Ark. 1161, 1 S.W.(2d) 801.

Appellee was a cotton buyer and classer, and was employed by appellants in that capacity to buy cotton for their account. One of the letters from appellants proposed a commission of fifty cents per bale, and expressed the opinion that a live man might buy as many as fifteen or twenty thousand bales of cotton in Oklahoma alone, and appellee's operations were not to be limited to that state. Appellee replied that he was a married man with two children, and that his family was dependent upon him for support, and he would require an all-year contract at a guaranteed salary, payable monthly or semimonthly, as well as the commission basis proposed by appellants.

The parties, having apparently come to terms through their correspondence, met to consummate the contract of employment, and after some discussion, it was agreed that appellant should reduce the contract to writing, and appellee returned to his home in Oklahoma, and a few days later received the copies for his signature. The contract was signed, but it was agreed, in the correspondence relating thereto subsequent to its execution, that these letters, which slightly amended the contract, should be construed as a part of it.

The relevant and material portions of the written contract are as follows: It was agreed that appellee, who was designated as the party of the first part, should buy cotton for appellants, designated as the party of the second part, in the Oklahoma City market and vicinity, but should buy "only on limits and under direction of the parties of the second part," and that on all cotton bought and taken up by the party of the first part, he was to receive fifty cents per bale commission. There are certain provisions about the payment of telephone calls and telegrams and other expenses which need not be recited, and it was then provided as follows:

"Parties of the second part agree to advance to the party of the first part two hundred dollars ($200) per month during term of this contract—one hundred dollars ($100) of which is to be payable on the first of each month in advance and one hundred dollars ($100) on the 15th, and to pay him balance commissions, if any, that have accrued at close of season. In addition to this advance of two hundred dollars per month, the parties of the second part agree to make further advances, if necessary, sufficient to cover telephone, telegraph and traveling expenses whenever the party of the first part is going outside of the State of Oklahoma for the purpose of buying and/or taking up cotton. It being agreed and understood that such advances are only a loan to the party of the first part and are to be paid back to the parties of the second part at the end of the season or before, if possible. It is mutually agreed and understood that the parties of the second part guarantee that the party of the first part will buy forty-eight hundred (4800) bales during the term of this contract.

"It is further agreed that in the event that either party is dissatisfied with this contract that they may terminate it by giving sixty days notice.

"Witness our hands this 14th day of July, 1928."

In the letter amending or supplementing this contract these provisions appear:

"It is mutually agreed between us that on any cotton that we buy and you take up, you are to receive the full commission of fifty cents (50¢) per bale, but on any cotton that you buy and call upon us to take up, you are to receive twenty-five cents (25¢) per bale. The other 25¢ is to go to us for the purpose of paying the expenses and time of the man who we might be required to send. In this event, bales bought will be considered half bales in the guarantee of forty-eight hundred.

"Fourth Paragraph. When you are called upon to go outside of Oklahoma to take up cotton or buy cotton, the expenses of the trip will be advanced to you by us and are to be paid back to us out of excess commissions that you receive above the forty-eight hundred bales, if you do not receive any commissions above the forty-eight hundred bales then this expense is to be borne by us."

On October 30th, appellants wrote appellee a letter, in which, after reciting the unsatisfactory condition of the cotton business, closed with the following statement: "Unless something turns up between now and the first of January, we are going to close up shop until another season. This will be sixty days notice to you of cancellation of the contract. We hope that by the end of this time that if you have not already secured employment that matters will shape themselves so that we can go on."

In his reply to this letter, appellee expressed his surprise and his unwillingness to be dismissed, and requested a letter of recommendation, and received a reply thereto in which he was authorized to refer...