Mills v. Hurley Hardware & Furniture Co.

• Decision Date: 11 June 1917
• Docket Number: 33
• Citation: 196 S.W. 121,129 Ark. 350
• Parties: MILLS v. HURLEY HARDWARE & FURNITURE COMPANY
• Court: Arkansas Supreme Court

196 S.W. 121

129 Ark. 350

MILLS v. HURLEY HARDWARE & FURNITURE COMPANY

No. 33

Supreme Court of Arkansas

June 11, 1917

Appeal from Bradley Circuit Court; Turner Butler, Judge; affirmed.

Judgment affirmed.

E. E Williams, for appellant.

1. It was error to take the case from the jury. Where there is any substantial evidence to warrant a verdict, it is the duty of the court to submit the issue to the jury. 98 Ark. 334; Ib 370; 105 Id. 136; 111 Id. 309; 71 Id. 445.

2. Gowens had no authority to cash the checks. 199 Ill. 151; 93 Am. St. Rep. 113; 18 L. R. A. 662; 117 Am. St. Rep. 333; 88 U.S. 21. Mere usage or custom contravening the established commercial law can not be proven. 88 U.S. 21.

3. There was no estoppel, for appellant had no knowledge that Gowens had ever endorsed the company's name to checks. 74 Minn. 41; 18 L. R. A. 662; Tiedeman on Com. Paper, § 77; 1 Parsons on Cont. (6 ed.) 62; Mechem on Agency, §§ 389, 392, 398; 1 Daniels on Neg. Inst. (4 ed.) § 292; 1 Am. & Eng. Enc. Law (2 ed.) 1002.

Fred L Purcell, for appellee.

Appellee paid its debt by mailing a check to the proper party. If appellant had any remedy it was against Gowens or the bank. 74 Am. Dec. 442; 61 Id. 731. Certainly appellee was not liable. It mailed the check to the proper party in payment and the check was honored. It did its whole duty.

STATEMENT BY THE COURT.

T. R Mills was the sole owner of a lime manufacturing plant situated at Batesville, Arkansas, which plant conducted its business under the trade name of Batesville White Lime Company. One A. B. Gowens was in the employ of appellant as superintendent or foreman of the manufacturing at the plant. The main office of the plant was in Little Rock, where appellant resided, and where the records and books were kept. Appellant spent about one-third of the time at his plant. The duty of the foreman and superintendent Gowens was to employ laborers, manufacture lime, and pay the laborers on pay day. The appellant sent to meet these pay rolls checks payable to A. B. Gowens, superintendent. It was also within the line of A. B. Gowens' employment to receive the mail at the plant, open letters, and fill orders when in his opinion the purchasers were reliable, and when any checks were received through the mail they were to be forwarded to appellant in Little Rock, where they were deposited for collection. He appeared to act with reference to the management of the Batesville White Lime Company as its manager. His authority was not questioned and he acted right along as manager of the property and paymaster for the laborers.

The First National Bank of Batesville had no express authority from appellant to cash checks drawn in the name of the Batesville White Lime Company and presented by A. B. Gowens.

On September 10, 1913, appellee ordered, through letter, from the Batesville White Lime Company, at Batesville, Arkansas, a car load of lime. The order amounted to $ 93.60 less freight. The lime was shipped from the plant by Gowens and received by the appellee. It was sold on thirty days' time. At the expiration of the time appellant wrote a letter to appellee enclosing a bill for the lime. Appellee immediately wrote appellant that it had forwarded a check for the amount to the Batesville White Lime Company, Batesville, Arkansas. Upon receipt of this letter appellant wired appellee that the check had miscarried and to stop payment. Appellee immediately applied to the bank on which the check was drawn to stop payment and was informed that it had been paid the day before. Appellee, upon inquiry of the First National Bank at Batesville, found out that the check had been indorsed and collected by A. B. Gowens, and that A. B. Gowens was superintendent of the manufacturing plant. Appellant made further demand upon appellee for payment and appellee refused to pay. Appellant then instituted this suit against the appellee, and on a trial the above facts were developed and ...