Scott v. McCraw, Perkins & Webber Co.

• Decision Date: 31 May 1915
• Docket Number: (No. 31.)
• Citation: 177 S.W. 901
• Parties: SCOTT v. McCRAW, PERKINS & WEBBER CO.
• Court: Arkansas Supreme Court

177 S.W. 901

SCOTT v. McCRAW, PERKINS & WEBBER CO.

(No. 31.)

Supreme Court of Arkansas.

May 31, 1915.

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

Suit by the McCraw, Perkins & Webber Company against S. A. Scott, who filed a cross-complaint. From a decree for plaintiff, defendant appeals. Modified and affirmed.

Appellant was a planter and merchant at Eudora, Ark., during the years in which the cotton involved in this litigation was shipped. The appellee company was composed of commission merchants in Memphis. Appellant bought cotton on the streets of Eudora and shipped it, as well as that raised by his own tenants, to appellee, who had made him advances on it, and after closing the transactions between the parties a balance was claimed by appellee of $2,519.59, with interest at 6 per cent. from February 27, 1912. Suit was filed by appellee on this account in the Pulaski circuit court July 20, 1913. Appellant answered, alleging that his instructions in regard to the sale of his cotton had not been observed, and he claimed, by way of cross-complaint, an excess over said account, which he claims resulted from appellee's failure to observe his instructions. He asked that the cause be transferred to the chancery court to purge appellee's account of illegal charges of interest, all commission on cotton not shipped, all charges of storage, fire insurance, and commissions on cotton that was wrongfully held by appellees, and, further, that the value of cotton at the time it should have been sold in obedience to appellant's instructions be ascertained by a master appointed by the court for that purpose, and a balance struck.

Depositions covering the various issues in the case were taken, and before the final submission of the cause appellant moved to remand it to the circuit court, on the ground that, at the time of filing his answer and cross-complaint in the circuit court, it was expected by all parties that the issues made would develop a state of facts that would call for an accounting by a master and that the intervention of the chancery court would be necessary; but he alleged in his motion to remand that the evidence taken had developed the fact that no accounting was necessary and no question of equity jurisdiction was involved. The motion was overruled and exceptions duly saved. Appellant moved the court for a decree on his cross-complaint, except as to the value of the cotton, as to which he offered proof; but this motion was overruled, and appellee was permitted to file an answer, denying the allegations of the cross-complaint. Thereafter the cause was submitted to the chancellor upon a voluminous record, and a decree rendered in favor of appellee for the sum of $2,003.39, which was the full amount for which judgment had been prayed, less the amount of commissions claimed by appellee on cotton which appellant had contracted to ship, or, upon failure so to do, to pay commissions on any deficiency at the rate of $1.25 per bale. Both parties have appealed from the decree.

Appellant had dealt with appellee company as a commission merchant and cotton factor for five years, and during this time borrowed large sums of money and shipped a large quantity of cotton, and the evidence appears to show without contradiction that the basis of their transactions was that appellee should advance money, which was to be repaid by appellant by the shipment of cotton. On April 9, 1910, appellant entered into an agreement with appellee whereby, in consideration of the sum of $5,000 to be thereafter advanced, appellant agreed to ship, during the cotton season of 1910 and 1911, 400 bales of cotton, to be sold by appellee on commission for appellant's account, with a proviso that, in case there was any failure on appellant's part to ship the cotton contracted for, appellant should pay commissions, at the rate of $1.25 per bale, upon each bale which appellant had failed to ship. Similar agreements had been made for the shipment of the same amount of cotton during the previous years during which the parties did business together, and in some of these years a quantity of cotton in excess of the amount contracted to be shipped had been shipped; but the difference between the parties as to cotton not shipped in accordance with the contract is confined to the cotton year of 1910 and 1911....