Scott v. McCraw, Perkins & Webber Company

• Decision Date: 31 May 1915
• Docket Number: 31
• Citation: Scott v. McCraw, Perkins & Webber Company, 177 S.W. 901, 119 Ark. 133 (Ark. 1915)
• Parties: SCOTT v. MCCRAW, PERKINS & WEBBER COMPANY
• Court: Arkansas Supreme Court

177 S.W. 901

119 Ark. 133

SCOTT v. MCCRAW, PERKINS & WEBBER COMPANY

No. 31

Supreme Court of Arkansas

May 31, 1915

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor reversed on cross-appeal; affirmed on appeal.

STATEMENT BY THE COURT.

Appellant was a planter and merchant at Eudora, Arkansas, during the years in which the cotton involved in this litigation was shipped.The appellees were 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 appellees who had made him advances on it, and after closing the transactions between the parties, a balance was claimed by appellees of $ 2,519.59, with interest at 6 per cent from February 27, 1912.

Suit was filed by appellees on this account in the Pulaski Circuit CourtJuly 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 appellees' failure to observe his instructions.He asked that the cause be transferred to the chancery court to purge appellees' 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 appellees were 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 appellees 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 appellees on cotton which appellant had contracted to 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 appellees as commission merchants and cotton factors 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 appellees 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 appellees 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 appellees 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.

Appellant was furnished the money contracted for, and at the beginning of the cotton season, commenced shipping to appellees cotton raised by him on his own plantation and other cotton purchased by him at Eudora.Appellant soon became dissatisfied with the prices obtained for his cotton, and offered proof tending to show that his cotton was not being sold at the highest market price, and that higher prices were being obtained for similar cotton in the markets at Greenville, Mississippi, and New Orleans, and that some of the cotton which appellant had purchased at Eudora was sold in Memphis below its cost.

There is a sharp conflict in the evidence in regard to the price which should have been obtained for this cotton, and this question is involved principally in the sale of cotton which was reported sold at one price and afterward reported as having been rejected because of the cotton being stained and mixed.The proof shows that appellant called on appellees in November, 1910, and directed that his cotton be held until a price named by him could be obtained for it.Appellant admits having given this direction in regard to holding his cotton but he says that in December thereafter and again in February, 1911, he called upon appellees and directed that his cotton be placed on the market and sold.The evidence in this respect is also sharply conflicting; that on the part of the appellant being to the effect that his directions were not obeyed, and that considerable loss was sustained on that account.Upon the other hand appellees testified that appellant's directions had been followed, and that the market price of all cotton had been obtained at the time of the respective sales of the cotton, but that the sale of the cotton had been hampered by appellant's directions, as a result of which they had been compelled to hold cotton while the market was high, and had been required to sell it when the price was low; and the proof on the part of appellees was also to the effect that some of their most advantageous sales had been annulled because the cotton, on delivery, did not correspond to the samples under which it had been sold.

Decree affirmed.

Baldy Vinson, S. M. Wassell and Miles & Wade, for appellant.

1.The cause should have been transferred to the law court; the intervention of a court of equity was not necessary as developed by the evidence.105 U.S. 430;33 A. 193;4 Wash. 534;108 Ark. 283;19 L. R. A. (N. S.) 1064, and note;70 Ark. 157.Consent can not give jurisdiction.88 Ark. 1.

2.In addition to the highest rate of interest allowed by law, a charge of $ 1.25 per bale for cotton not shipped, constitutes usury.39 Cyc. 971;59 Ark. 366;93 U.S. 344;160 F. 425.

3.Ap...