Pratt v. Frazer

• Decision Date: 20 June 1910
• Citation: 129 S.W. 1088
• Parties: PRATT v. FRAZER.
• Court: Arkansas Supreme Court

129 S.W. 1088

PRATT v. FRAZER.

Supreme Court of Arkansas.

June 20, 1910.

Appeal from Pulaski Chancery Court; Jno. E. Martineau, Chancellor.

Suit by Geo. P. Frazer against John R. Pratt. Decree for complainant, and respondent appeals. Affirmed.

This suit was instituted in the Pulaski chancery court by George P. Frazier against John R. Pratt. The complaint in substance alleges that the parties to the suit formed a partnership for the purpose of selling stock for an insurance company, and that by its terms they shared equally the profits and losses. The defendant, Pratt, demurred to the complaint because it did not state facts sufficient to constitute a cause of action, and because the court did not have jurisdiction to hear and determine the case. The record does not show any ruling of the court upon the demurrer. The defendant then answered. He denied that a partnership existed between him and the plaintiff, and denied that he was indebted to him.

The facts are practically undisputed and are substantially as follows: Some time in April or May, 1908, G. P. Frazer received a letter at his office in Little Rock, Ark., from the Co-operative Company of Rome, Ga., asking him how it would suit him for Jno. R. Pratt to come over and for them to sell the stock of the company together. He answered that it would be all right. Some time in May, 1908, Pratt came to his office and they made a verbal agreement to sell the stock together. They were to receive 20 per cent. commissions on all stock sold, and they agreed to share equally the expenses and profits. Later they reduced the agreement to writing and it is as follows: "This agreement, entered into this the 27th day of July, 1908, between and by George P. Frazer and John R. Pratt, as follows: That on all stock sold in the state of Arkansas for the Co-operative Agency Company, of Rome, Ga., it is mutually agreed that the commissions are to be divided equally between said George P. Frazer and John R. Pratt. This contract may be terminated by giving each or either party ten (10) days' notice. In witness hereof we have hereunto affixed our signatures." Both parties testify that they were to share equally the profits and losses.

Pursuant to the terms of their agreement, they sold 1,420 shares of the stock, and then, after deducting the expenses, they divided equally the 20 per cent. commissions. Later Frazer learned that Pratt had an individual contract with the company whereby he was to receive an additional sum or bonus of $1 for each share of stock sold. Frazer did not learn of Pratt having this additional contract with the company until after his settlement with him, and he claims that he is entitled to one-half of the fruits thereof by virtue of his contract with Pratt. To recover it, he instituted this action. Pratt does not deny having received the additional $1 for every share of stock sold by him and Frazer, but contends that it was a bonus or gratuity given to him individually, and that Frazer was not entitled to share therein. There is no controversy as to the amount, if anything is due Frazer. The court found for the plaintiff, Frazer, in the sum of $710, and to reverse the decree rendered, this appeal has been prosecuted.

Cammack & White and Carmichael, Brooks & Powers, for appellant. Robt. L. Rogers and Will Akers, for appellee.

HART, J. (after stating the facts as above).

"Where a cause has proceeded to final adjudication, without judgment of the court upon demurrer filed in same, the demurrer will be considered to have been waived." Kierman v. Blackwell, Adm'r, et al., 27 Ark. 235. As far as the record discloses, the court was never called upon to rule upon the demurrer, and the cause may be said to have proceeded to final adjudication in the chancery court by consent of the parties.

The rule is well settled that it is only where the...