Star Clothing Manufacturing Company v. Jones

• Court: Arkansas Supreme Court
• Writing for the Court: SMITH, J.
• Citation: Star Clothing Manufacturing Company v. Jones, 218 S.W. 175, 142 Ark. 114 (Ark. 1920)
• Decision Date: 02 February 1920
• Docket Number: 159
• Parties: STAR CLOTHING MANUFACTURING COMPANY v. JONES

218 S.W. 175

142 Ark. 114

STAR CLOTHING MANUFACTURING COMPANY v. JONES

No. 159

Supreme Court of Arkansas

February 2, 1920

Appeal from Nevada Circuit Court; George R. Haynie, Judge; affirmed.

Judgment affirmed.

W. P Murrah, for appellant.

1. Appellant was not due appellee any commissions on orders until the goods were shipped; the verdict is contrary to the law and evidence, and the giving of plaintiff's instructions and the refusal of defendant's were erroneous.

It was error to give instruction No. 1 for plaintiff, for it goes far beyond the contract plaintiff was working under and makes him entitled to commissions on goods not shipped, under certain conditions. 90 Ark. 88; 105 Id. 215; 95 Id. 421.

2. It was error to refuse instruction No. 2 for defendant, as it was not denied that defendant had the right to accept or reject orders sent in by traveling salesmen.

Instruction No. 4 refused was covered by the one given by the court's own motion. A long citation of authorities is unnecessary to show that a contract had been entered into and that the verdict and judgment were contrary to the terms of the contract and the judgment should be reversed. Appellee had acted under this same contract for six or seven years and taking orders under it and had accepted the terms without complaint. If no contract or agreement had been entered into he was bound by the custom and appellee had no cause of action until the goods were shipped and accepted by the customers, and no commissions were due.

McRae & Tompkins, for appellee.

The company accepted the orders taken by Jones, and in almost every instance the goods were shipped, and a binding contract was thus made. The judgment is based on the amount of accepted orders as shown by the testimony of the sales manager. At the trial appellant did not raise the question that the orders taken by Jones had not been accepted. It based its defense solely upon the fact that the goods had not been shipped. The proof conclusively shows bad faith on the part of appellant in making excuses, as all goods bought after the advance in price were promptly delivered.

By its verdict under instruction No. 1 the jury found that Jones was working for appellant under a 6 per cent. commission contract on goods accepted and shipped; that appellant accepted the orders and had the goods to fill these orders and arbitrarily refused because of a large advance in price. 26 N.E. 314 is not this case. See also 135 F. 910. Here the agent produced a purchaser, ready, willing and able to purchase, and appellee earned his commission. 132 Ark. 378; 87 Id. 506; 44 L. R. A. 593 and note; 89 Id. 289; 112 Id 566; 97 Id. 23. There were no errors in the instructions given for plaintiff nor refused for defendant. Cases supra, and see also 15 Pa. Sup. 250; 94 N.W. 910; 183 S.W. 1182; 49 N.W. 586. The case was fairly tried upon proper evidence and instructions and should be affirmed.

OPINION

SMITH, J.

This is a suit by an agent to collect commissions for effecting sales of merchandise. The plaintiff recovered judgment, and the defendant has appealed.

The testimony shows that plaintiff took numerous orders for goods in the territory in which he traveled, which were forwarded to and accepted by defendant, and portions of most of these orders were filled, but that the price of the goods sold advanced rapidly and considerably after the orders therefor had been taken and accepted and defendant ceased filling the orders. It was shown that later orders placed at the advance prices were promptly filled.

The suit was defended upon two grounds; the first being that the goods in question were required to fill Government orders for military purposes; but that defense was submitted under an instruction which told the jury to find for the defendant, if the failure to fill orders was due to that fact, so that that defense has passed out of the case.

The second defense, and the one which presents the controlling question, is that defendant became liable for the agent's commissions only when it had accepted orders and had shipped out the goods filling the orders.

The contract out of which this controversy arises was an oral one, yet there is no substantial difference in the statement of its terms by the parties thereto. The agent was to receive 6 per cent. commission on all orders booked, accepted and shipped which were received from him, and 3 per cent. when mail orders were received from his territory.

Declaring the law applicable to a contract of that character, the court gave the following instruction: "No. 1. You are told that if you find from a preponderance of the evidence that the plaintiff worked as salesman for the defendant, under an agreement that he should receive six per cent. commission on all goods sold by him, when the orders were accepted by the defendant, and shipped by them, and that the defendant accepted the orders, then they had no right to arbitrarily refuse to ship the goods and if you believe that they refused to ship the goods for the reason that the price advanced, and in order to sell the goods at a higher price, and that they did have the goods to fill such accepted orders and did...