Tidwell v. Southern Engine & Boiler Works
Decision Date | 29 June 1908 |
Parties | TIDWELL v. SOUTHERN ENGINE & BOILER WORKS |
Court | Arkansas Supreme Court |
Appeal from Clark Circuit Court; Jacob M. Carter, Judge; affirmed.
Judgment affirmed.
McMillan & McMillan, for appellants.
Time was of the essence of the contract. Clark on Contracts § 251; 115 U.S. 188; 74 Ark. 41; 73 Id. 338. The words of the contract should be construed most strongly against the party who used them. 74 Ark. 41; 73 Id 342. A clause in a contract directed to a particular matter controls over a clause general in its terms. 72 Ark. 633. A contract to do a thing "as soon as possible" means that it should be done with all expedition. 59 Hun, 512. The court erred in directing a verdict. 63 Ark. 94; 73 Id. 568; 82 Id. 89.
Mathes & Westbrooke, for appellee.
The parties are bound by their contract. 70 Ark. 572; 71 Id. 185. The contract cannot be varied or added to by parol. 75 Ark. 206; 78 Id. 574. Where the damages are uncertain or unliquidated, the parties should be permitted to stipulate them if they choose. 14 Ark. 315; 83 Ark. 144; 56 Id. 405; 57 Id. 169; 73 Id. 432; 83 Id. 364.
Appellee is a Tennessee corporation, domiciled at Jackson in that State, and instituted this action at law against appellant in the circuit court of Clark County to recover stipulated damages for failure to perform his written contract for the purchase of a saw-mill outfit, consisting of boiler, engine, saw-mill, edger, saws, belting, pulleys, etc. The contract is dated July 28, 1906, and provided that the appellee should "manufacture or buy and furnish and sell" to appellant the articles described and have the same ready for delivery on board cars at Jackson, Tennessee, or at factory where made "on or about August 15, 1906, or as soon thereafter as practicable." The contract contains the following stipulation, viz: "This order is not subject to countermand except on payment of 20 per cent. of contract price, which is agreed to be paid as liquidated damages." The price agreed upon in the contract was $ 1675, and appellee sued for 20 per cent. of that sum.
Appellee introduced the written contract in evidence, and also the subsequent correspondence between the parties showing that appellant countermanded the order. Appellee's manager also testified that the articles were ready for shipment on board cars on August 31, 1906, and explained that the delay was caused on account of having to manufacture the boiler according to the specifications.
The following written correspondence by mail passed between the parties:
Appellee replied to the last letter, agreeing to withhold shipment for awhile, and further correspondence passed between them concerning postponement of the shipment. On October 31, 1906, appellant wrote countermanding the order and refusing to accept the articles at all. A witness for appellee testified that the actual damage sustained by appellee on account of appellant's refusal to accept amounted to $ 450 or $ 500, giving the various items of damage. The court instructed the jury to return a verdict for appellee, which was done.
The instruction was correct. Appe...
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