Rock Island Plow Co. v. Rankin Bros. & Winn

• Decision Date: 11 January 1909
• Citation: 115 S.W. 943
• Parties: ROCK ISLAND PLOW CO. v. RANKIN BROS. & WINN.
• Court: Arkansas Supreme Court

115 S.W. 943

ROCK ISLAND PLOW CO. v. RANKIN BROS. & WINN.

Supreme Court of Arkansas.

January 11, 1909.

On Rehearing, February 1, 1909.

Appeal from Circuit Court, Pope County; Hugh Barham, Judge.

Action by Rankin Bros. & Winn against the Rock Island Plow Company to recover money due on a settlement. From a judgment for plaintiff, defendant appeals. Affirmed.

On the 23d day of May, 1906, Rankin Bros. & Winn, a firm composed of J. A. Rankin, J. L. Rankin, and M. L. Winn, brought suit in a justice of the peace court in Illinois township, in Pope county, Ark., alleging that the Rock Island Plow Company was indebted to them in the sum of $219.97 for goods sold to it. The plow company was a foreign corporation, and a garnishment was issued against H. A. Clifton & Son, who were alleged to be indebted to the plow company. The plow company answered, denying any indebtedness to the plaintiffs and set up a counterclaim against them, praying judgment on it against the plaintiffs for the sum of $79.10. The justice found for the plaintiffs for the full amount of their claim, and also found that Clifton & Son, garnishees, were indebted to the plow company, in an amount equal to the claim, and ordered the said garnishees to pay plaintiffs said amount. The plow company appealed to the Pope circuit court, and, upon giving bond that it would perform the judgment of the court, the attachment issued against H. A. Clifton & Sons was discharged.

On a trial anew in the circuit court the following testimony was introduced as shown by the abstract of appellant.

J. A. Rankin testified: "I am one of plaintiffs, and was a member of the firm of Rankin Bros. & Winn. We did a hardware and furniture business in the city of Russellville prior to the fire, January 15, 1906. We purchased part of our hardware from Rock Island Plow Company. In summer of 1905 we made a contract for a car shipment of goods January 1, 1906. During fall or early winter of 1905 we had an offer to sell out, and countermanded our car order, but, failing to sell, we later reinstated the order. Upon our countermand of order the company sent claim for 20 per cent. penalty to an attorney here, who presented same, but upon our reinstatement of the car order nothing more was said, and we supposed the matter was dropped. Our business was burned out January 15, 1906, but we were able to save $390 or $400 worth of goods carried over from last year, and which we had purchased of defendant. The car of goods had not come at time of fire, but came in a few days later, probably January 23d or 24th. We were trying to get a place to continue business, when on or about January 26th Mr. J. D. Burris, the company's representative, came. Failing to get a place to continue business, we finally agreed for Mr. Burris to take the car of goods, and assisted him in selling the car to H. A. Clifton & Son, they paying the price we had agreed to pay, together with the freight, the company losing nothing upon the car. It was agreed by Mr. Burris and ourselves that this settled the car matter. We owed the company $164 from last year, for which they held our note. Mr. Burris looked at the goods which we had saved from the fire, and proposed to buy them from us and pay us first price, to which we agreed. He took the goods and gave us a receipt for them. I told him we were letting him have more than enough to cover our indebtedness to the company, and he said that he knew it, but that the company would pay the difference, so we let them go. The goods taken up amounted to $388.77. After paying our note, the company owes us $219.97. On April 27, 1906, we wrote the company to pay us this balance, when they answered, making claim for the 20 per cent. penalty." On cross-examination witness says that the amount due them from the company on the goods sold to Mr. Burris for the company was not figured up at the time because Mr. Burris was in a hurry, but it was understood by Mr. Burris that he was getting more than required to settle with the company, but that he allowed Mr. Burris to take the goods upon his promise that the company would pay the difference. Witness says that Mr. Burris waived the 20 per cent. clause in this settlement, and denies that Mr. Burris took the goods in full settlement of all difference between them and the company, denies that his firm refused to receive the car of goods from the railroad company, but admits that he may have told the agent, Mr. Smallwood, that they could not receive them just then. Witness does not know of any statements made by his partner, M. L. Winn, to the railroad agent.

J. D. Burris testified: "I was general manager of the Memphis Branch of the Rock Island Plow Company in January, 1906. The state of Arkansas was in my territory. One of our travelers sold a car of goods to Rankin Bros & Winn during the summer of 1905 for shipment January 1, 1906. I received notice of the fire, and proceeded to Russellville by first train. Finding the car on the side track, I began to devise means by which I could without trouble recover the goods. One of the members of the firm seemed stubborn and wanted to hold the car, but the other member was not only willing to let me have the car, but permitted me to take up some old goods carried over from the previous year, and in that way reduce not only their obligation for the car shipment, but make practically, with the exception of something like $25, complete settlement of their entire obligation to the company. I took possession of the car, and sold its contents to other merchants in and around Russellville. I cannot remember whether I went to Russellville at request of Rankin Bros. & Winn or not. I went there to protect the company's interest. In my settlement all claims, as far as the car shipment was concerned, were waived. The 20 per cent. clause was not considered. My understanding was that our settlement closed the matters between Rankin Bros. & Winn and the company, so far as the car shipment was concerned. I took up some old goods to settle a balance from the past year's business, stating at the time that this would not quite offset the claim, and I roughly estimated that there was still due the company a balance of $25 or $35, but I did not consider that the company would ever get this, as the firm of Rankin Bros. & Winn had been practically put out of business by the fire, and I advised the home office to charge this balance up to profit and loss." On cross-examination witness says that the goods were taken up in payment of indebtedness of Rankin Bros. & Winn to the...