Mechanics' Lumber Co. v. Yates American Mach. Co., 234.
| Decision Date | 24 March 1930 |
| Docket Number | No. 234.,234. |
| Citation | 26 S.W.2d 80 |
| Parties | MECHANICS' LUMBER CO. v. YATES AMERICAN MACH. CO. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Sebastian County; J. Sam Wood, Judge.
Action by the Yates American Machine Company against the Mechanics' Lumber Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
Cravens & Cravens, of Ft. Smith, for appellant.
Clinton R. Barry, of Ft. Smith, for appellee.
This action was begun by appellee to recover on a written contract for goods and machinery sold and delivered to appellant by appellee. A copy of the contract sued on is attached to complaint and made a part thereof. Appellant filed answer denying the material allegations of the complaint. He admitted the execution of the contract sued on, but stated that on the same date, at the same time, and as a part of the same transaction and contract, he entered into a written contract with appellee by which appellee sold him No. 2 4" × 8" Yates American sash clamp Fig. 8855, single motion clamp with sash attachment, nearly new, at and for the price of $260 to be in fine running condition with all regular equipment; a copy of which contract is attached to appellant's answer and made part thereof. Appellant further alleged in its answer that at the time plaintiff's representative, H. J. Flanders, called upon it on March 14, 1928, and induced it to purchase machine as described in Appellee's Exhibit A and Appellant's Exhibit A, the appellant declined and refused to purchase said machine or any part thereof unless it could be assured that the contract marked "Exhibit A" to appellant's answer should be considered a part of the purchase contract and that appellant should be assured of the sale and delivery of the machine mentioned in its Exhibit A, otherwise it refused to purchase any of the said machinery, and that thereupon the appellee's representative, H. J. Flanders, sent to it the following telegram: To which the said representative of appellee received the following reply: Which telegram from Flanders to the Yates American Machine Company was shown to the appellant, also reply telegram, whereupon the contract for the sale of all of the machinery as shown in Appellee's Exhibit A and Appellant's Exhibit A were entered into upon the assurance by the duly authorized representative of the appellee, H. J. Flanders, that the contract for the sale of said machine would be considered as one contract although evidenced by two different writings. It was further alleged in the answer that it was understood and so placed in said contract that the order should be rushed and that the same rush order applied to Appellant's Exhibit A, but that appellee in shipping the machinery described in its Exhibit A failed to ship the two motors described therein and delayed shipping the same for some five or six weeks, thereby preventing the appellant from the use of said machinery for said period of time, to its damage in the sum of $100, and that when the one No. G-44 cut-off saw motor was received by appellant, it was found to be defectively wired, which defects the appellant had to have remedied at an expense of $____, a reasonable charge therefor, and further deprived the appellant of the use of said machine until the same could be properly conditioned, to the appellant's damage in the sum of $100, and that the appellee failed and refused to ship the Yates American Sash Clamp Machine with equipment as described in Appellant's Exhibit A, which was sold to the appellant for the price of $260, and that upon the failure of the appellee to ship said machine and equipment, the appellant was advised by the appellee that such a machine as the appellant had purchased could not be furnished for less than $560, which was $300 in excess of the sale price made by the appellee to the appellant, and said machine at the time the appellee refused to ship same to the appellant was of the reasonable value of $560, to its damage in the sum of $300, and that appellant later had to go into the market to purchase such a clamp sash machine as it had contracted to purchase from the Yates American Machine Company and paid therefor $480, but that said machine so purchased was not of the same quality or value as the machine appellant had contracted to purchase from the appellee and was worth $80 less than said machine and could not be delivered at the time the appellant was advised by appellee it would not ship the sash clamp machine sold by it to appellant; that at the time of the purchase of said sash clamp machine from the appellee, appellant advised appellee's representative that it had at that time certain large contracts which required the manufacture of a large bill of sash and doors and that said machinery was needed by said appellant at once in the manufacture of said required stock, and upon the failure of the appellee to ship said machine the appellant was required to manufacture said sash and doors which it had contracted to deliver by the use of hand clamp machines, which made said sash and doors cost said appellant, in filling the orders which had already been contracted for and which the appellee had been advised had been contracted for, in excess of what it would have cost had the sash clamp machine ordered from the appellee been delivered, in the sum of $500. Appellant admits that it is indebted to appellee in the sum of $1,181, less the amount it claims to have been damaged, and tenders into court the sum of $181 and accrued costs.
The appellant introduced evidence supporting the allegations of its answer.
Appellant contends first that the court should have directed a verdict for it for the reason that it denied in its answer that appellee was a corporation and no proof was offered to establish the fact that it was a corporation, and also for the reason that there was no proof that the appellee ever approved or accepted the order for new machinery and offered no proof as to the value of the machinery shipped. The denial that appellee is a corporation is in substance the same words as the denial in Loose-Wiles Biscuit Co. v. Jolly, 152 Ark. 442, 238 S. W. 613, 614, and the court there said: "The effect of this allegation is not to deny that defendant is a corporation, but to deny that it is organized and doing business under the laws of the state of Missouri." Besides, in this case the appellant dealt with the appellee as a corporation and sought to recover damages in the case against it as a corporation, and would therefore be estopped from denying that it was a corporation. Wesco Supply Co. v. Smith, 134 Ark. 23, 203 S. W. 6; Jones v. Dodge, 97 Ark. 248, 133 S....
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