United States Auto Company v. Arkadelphia Milling Company

• Decision Date: 06 October 1919
• Docket Number: 120
• Citation: 215 S.W. 641,140 Ark. 73
• Parties: UNITED STATES AUTO COMPANY v. ARKADELPHIA MILLING COMPANY
• Court: Arkansas Supreme Court

215 S.W. 641

140 Ark. 73

UNITED STATES AUTO COMPANY v. ARKADELPHIA MILLING COMPANY

No. 120

Supreme Court of Arkansas

October 6, 1919

Appeal from Pulaski Circuit Court, Third Division; G. W. Hendricks Judge; affirmed.

Judgment affirmed.

James A. Comer, for appellant.

1. The second contract superseded the first entered into October 30 1916. The contract was duly signed and it is not contended to be a forgery. The court erred in its instructions as to damages for loss of profits by breach of contract. 65 Mo 534; 53 L. R. A. 33; 52 Id. 33; 78 Ala. 243; 78 Ark 336; L. R. A. 1916 B, p. 836.

2. The court erred in refusing a new trial because the newly discovered evidence was material.

Rogers, Barber & Henry, for appellee.

1. There never was but one contract entered into, as the second contract was never executed and was never ratified or recognized. It was signed only by H. Flanagin, and the words Arkadelphia Milling Company were written above Flanagin's signature and it was a nullity or spoliation. The second contract was not binding, but the question was fairly submitted to a jury by instruction No. 4, asked by appellant.

2. There is no error in the instructions given or refused. Profits are a proper element of damages. 69 Ark. 219; 80 Id. 228. See also 105 Ark. 421; 113 Id. 556; 101 N.Y.S. 205; 139 U.S. 199. All the questions involved are settled by the verdict and it should stand.

STATEMENT OF FACTS.

Appellee sued appellant to recover damages in the sum of $ 1,929.18, which is alleged to be due as commissions on the sale of automobiles.

Appellant denied the allegations of the complaint and by way of counterclaim averred that appellee was indebted to it in the sum of $ 597.75 for an automobile purchased on the 11th day of May, 1917. The facts are as follows:

On October 30, 1916, appellant and appellee entered into a written agreement whereby the former allotted to the latter the exclusive sale of Maxwell automobiles in Clark County, with the exception of that strip lying south of Antoine River, including the town of Delight and also that part of Dallas County lying west of Princeton. The contract also contained a clause as follows:

"This contract will stand until further agreement by both parties."

There, also, appears in the record a contract of the date of April 18, 1917, with the following signatures thereto:

"United States Auto Co.

"By Thos. Joyce, Dealer.

"Arkadelphia Milling Co.

"By H. Flanagin, Special Dealer."

This alleged contract goes very much more into details than the first contract. It contains a clause that the agreement shall continue in force until June 30, 1917, but that it may be canceled by either party at any time upon written notice. This alleged second contract is the foundation of this lawsuit.

It is claimed by appellant that the signatures thereto are the genuine signatures of the parties. On the other hand it is claimed by appellee that the contract was signed by H. Flanagin, and that he had no authority to sign it for appellee and that appellee did not sign the contract, but that the words, "Arkadelphia Milling Company by" were added to the contract after it had been signed by H. Flanagin for himself.

Under the contract dated October 30, 1916, appellee bought cars at two different times, which were shipped to its place of business at Arkadelphia and were sold by it in due course of business. On the 18th day of April, 1917, appellee ordered a carload of five cars from appellant. When the car arrived there were only four autos instead of five. There was room for five automobiles if properly loaded and if there had been five automobiles in the car the freight would have been $ 31.70 each, but with only four in the car, the freight was $ 39.60 each.

According to the testimony adduced by appellee, Flanagin did not have any authority to sign the contract dated April 18, 1917, for it, and its name was not signed thereto by any one who had authority to do so. The evidence of its manager shows that the agents of appellant tried to get him to sign the contract, but that he refused to do so. The manager of appellee corporation did not know that appellant claimed that it had signed the contract dated the 18th day of April, 1917, until appellee received the letter dated May 15, 1917, notifying appellee that its contract dated about April 18, 1917, had been canceled.

Evidence was also adduced by appellee tending to show that it had made a contract with T. B. Griffin to sell cars for it in the territory allotted to it by appellant under the contract of October 30, 1916. After the alleged contract of April 18, 1917, had been canceled, appellant made a contract with Griffin to act as its agent in the sale of cars in the territory which had been allotted to appellee October 30, 1916.

During the months of May, June and July, 1917, T. B. Griffin sold sixteen Maxwell automobiles in the territory which had been allotted to appellee under the contract of October 30, 1916, and if the cars had been sold by it, it would have received as commissions $ 1,196 therefor. During these same months, C. E. Elms, another agent of appellant, sold its cars in the territory which had been allotted to appellee under the contract of October 30, 1916, and appellee's commissions on these cars are estimated at $ 571.50. It is also shown by appellee that it paid as an advance on the car of automobiles $ 100, which has not been refunded to it.

H. Flanagin was a witness for appellee, and stated that he signed the contract of April 18, 1917, for himself and not for appellee. He stated positively that the words "Arkadelphia Milling Company by", were not written on the contract at the time he signed it.

On the part of appellant it was shown that the words "Arkadelphia Milling Company by" were written on the contract by H. Flanagin, who was an agent for appellee. Other evidence was adduced by appellant tending to show that the contract of April 18, 1917, was ratified by appellee. Witnesses for appellant also testified that the cars which were sold by Elms were not sold in the territory which had been allotted to appellee under the first contract. It is also shown by appellant that appellee was indebted to it in the sum of $ 597.75 for one Maxwell automobile purchased on the 11th day of May, 1917.

Other facts will be stated or referred to in the opinion.

The jury returned into court the following verdict: "We, the jury, after allowing defendant's counterclaim, find for the plaintiff in the sum of $ 257.28 above the counterclaim."

OPINION

HART, J., (after stating the facts).

It is insisted by counsel for appellant that the court erred in giving instruction No. 10, which is as follows:

"If you find for the plaintiff, the measure of damages will be the profits, shown to a reasonable certainty, which the plaintiff would have gained by virtue of carrying out the terms of their contract with the defendant, and by profits is meant the amount of the commissions on sales of cars,...