Purnell v. Atkinson

• Court: Arkansas Supreme Court
• Writing for the Court: FOGLEMAN
• Citation: Purnell v. Atkinson, 451 S.W.2d 734, 248 Ark. 401 (Ark. 1970)
• Decision Date: 30 March 1970
• Docket Number: No. 5--5196,5--5196
• Parties: Carl PURNELL, d/b/a Plantation Embers, et al., Appellants, v. Jimmy ATKINSON, d/b/a Atkinson & Associates, Appellee.

Page 734

451 S.W.2d 734

248 Ark. 401

Carl PURNELL, d/b/a Plantation Embers, et al., Appellants, v. Jimmy ATKINSON, d/b/a Atkinson & Associates, Appellee.

No. 5--5196.

Supreme Court of Arkansas.

March 30, 1970.

Dickey, Dickey & Drake, Pine Bluff, for appellants.

Henry W. Gregory, Jr., and Robert Tolson, Jr., Pine Bluff, for appellee.

FOGLEMAN, Justice.

Acting for Plantation Embers, appellant Carl Purnell entered into an oral contract sometime in 1966 with Atkinson-Torrence, Incorporated. Plantation Embers is a corporation engaged in the restaurant business. ¹ Atkinson- Torrence was operating as an advertising agency. By the terms of this contract Atkinson-Torrence was to handle Plantation Embers' advertising with KATV. This agreement was evidenced by a written authorization from Purnell to KATV, the content of which is not disclosed. A part of the advertising agency's responsibility involved the preparation of materials necessary for advertising three 'spots' per week. Appellee Atkinson testified that this oral contract 'was a continuing type of thing subject to cancellation on 30 days notice' and that it 'was renewed in December for another year, December 1968.' Because of this arrangement, which saved KATV time and expense, KATV discounted by 15% its charge for this advertising. The discount went to Atkinson-Torrence and was its compensation for services; hence, in effect, Purnell did not pay an additional charge for the services. Purnell was billed monthly for the preceding month by Atkinson-Torrence for all charges including the gross charge by the station.

Pursuant to the oral contract, a written contract was executed between KATV and Atkinson-Torrence. This contract ran from December 12, 1967, until December 12, 1968. Although Plantation Embers was not a formal party to this contract, it was made on appellant's authorization through the oral contract. Prior to this arrangement, Purnell had contracted directly with the television station.

The corporation, Atkinson-Torrence, actually consisted of two people, Mr. Atkinson and Mr. Torrence. Mr. Torrence had done cartoon work used in KATV advertising for Plantation Embers previous to the oral contract with the advertising corporation and prior to the organization of the corporation. Mr. Atkinson, appellee, dealt with Mr. Purnell on copy changes for the advertising. On October 1, 1968, without the knowledge of Mr. Purnell, the corporation was dissolved and Mr. Purnell's account assigned orally to Atkinson & Associates which consists solely of Mr. Atkinson. Atkinson renewed the written contract with KATV, effective December 17, 1968, in the name of Atkinson & Associates. The parties disagree as to whether Purnell had notice of this renewal. According to Atkinson it was dated December 17, 1968, and a copy sent to Purnell. Purnell denies that he ever received or saw a copy of this contract.

Apparently the first knowledge Mr. Purnell had of the change in the agency came through a letter from Torrence Dated December 9, 1968. Purnell was behind in his payments for August and September, and this letter asked that he make these payments in order that the affairs of the corporation could be completed. Purnell testified that he had become unhappy with the advertising because of alleged errors in the announcements and that he had asked to be notified of the time the 'spots' were to be run so that he might watch them. When this was not done he withheld payment for August and September, contrary to his prior practice of paying these bills promptly. Upon receiving the letter of December 9, he paid these two bills. Each month thereafter he received a bill for the preceding month but paid none of them. Upon receipt of a bill in February, which set out the balance past due for the months of October, November, and December and the balance due for January, Mr. Purnell wrote on the bottom of the bill, 'Jimmy This is in error as these were cancelled months ago' and then returned the bill. When Mr. Atkinson received the bill with the notation, he contacted KATV and arranged to have the advertising stopped as soon as he could. Appellee brought this suit when Mr. Purnell refused to pay the bill. Judgment was given to Atkinson for $870, the amount due prior to the time the cancellation was held to be effective, plus interest.

Appellant Purnell relies on two points: that there was no contract with Atkinson & Associates and, alternatively, that it had been cancelled. The first point turns on the validity of the alleged assignment. Appellant advances the theory that the contract was one for personal services and hence not assignable, relying on Roberts Cotton Oil Co. v. F. E. Morse & Co., 97 Ark. 513, 135 S.W. 334, and LEADER CO. V. LITTLE ROCK RY. & ELEC. CO., 120 ARK. 221, 179 S.W. 358, AND 6² Am.Jur.2d, Assignment, p. 196, § 11. While appellee disputes this theory, it is not necessary to decide this question. An assignment which is invalid or ineffective, even where the contract is for personal services, may be validated by ratification which may relate back to the time of the assignment. 6 C.J.S. Assignments § 78, p. 1133; 6 Am.Jur.2d Assignment, p. 196, § 11, p. 206, § 21; see Corning Roller Mills Co. v. William Kelly Milling Co., 159 Ark. 1, 250 S.W. 895.

On the issue of ratification, the evidence taken in the light most favorable to appellee shows that appellant Purnell had notice of the assignment on the 9th or 10th of December, 1968. Subsequently he discussed the advertising with appellee, but made no objection to, or repudiation of, the assignment. In this discussion, Purnell again expressed...