Ritchie Grocer Co. v. W. B. Waller & Co.

• Decision Date: 21 October 1935
• Docket Number: No. 4-3999.,4-3999.
• Citation: 86 S.W.2d 562
• Parties: RITCHIE GROCER CO. v. W. B. WALLER & CO. et al.
• Court: Arkansas Supreme Court

86 S.W.2d 562

RITCHIE GROCER CO. v. W. B. WALLER & CO. et al.

No. 4-3999.

Supreme Court of Arkansas.

October 21, 1935.

Appeal from Circuit Court, Nevada County; Randolph P. Hamby, Special Judge.

Action by the Ritchie Grocer Company against W. B. Waller & Company and others. From an adverse judgment, plaintiff appeals.

Affirmed.

E. F. McFaddin, of Hope, for appellant.

McRae & Tompkins, of Prescott, for appellees.

JOHNSON, Chief Justice.

This action was instituted by appellant against appellees in the Nevada circuit court to recover upon a promissory note signed by W. B. Waller & Co., Will Waller, and Ben Waller, of which firm W. B. Waller, now deceased, was alleged to have been a member. The note was dated January 1, 1929, due November 1, 1929, for the sum of $2,254.44, with interest. At the time the suit was instituted, W. B. Waller was dead but his administratrix filed an answer denying that he was a member of the firm of W. B. Waller & Co. or that he had signed the note or that his estate was in any way liable on the note in suit.

From the testimony hereinafter stated the trial court found, without the intervention of a jury, that neither W. B. Waller nor his estate were liable upon the note to appellant, and this appeal seeks a reversal of this finding and consequent judgment.

The testimony adduced upon the trial was to the following effect: H. J. Wilson testified that he had resided in the city of Prescott for about 32 years and that he began work for the appellant in 1913; that from 1913 to 1921 he kept the books at Prescott; that in 1921 appellant moved its books to Hope, where they were subsequently kept; that during all this period of time, Mr. Smythe was manager of appellant's business at Prescott; that witness had known W. B. Waller since 1902; that Ben and Will Waller were the sons of W. B. Waller; that the Waller business was located where the Guthrie Drug Store now is; that in the year 1913 witness started selling merchandise to W. B. Waller and continued up to the date of the note in suit; that when witness started selling merchandise to W. B. Waller the style of the business was W. B. Waller, but that some time in 1926 or 1927 the style of the business was changed from W. B. Waller to W. B. Waller & Co.; that after the change in the style of the firm, witness continued to sell them merchandise; that witness continued to solicit business from W. B. Waller after the style of the firm was changed; that after the change of the style of the business, W. B. Waller was there at the store most of the time. Mr. Smythe testified that since 1913 he had been connected with appellant as branch manager and otherwise and as such acted as credit manager; that for the period of time covered by the note in suit the Waller account was carried in the name of and against W. B. Waller and not against the firm of W. B. Waller & Co., and that the ledger sheets which were...