Wilkes v. Stacy

• Decision Date: 29 June 1914
• Docket Number: 127,84
• Citation: 169 S.W. 796,113 Ark. 556
• Parties: WILKES v. STACY
• Court: Arkansas Supreme Court

169 S.W. 796

113 Ark. 556

WILKES v. STACY

No. 127, 84

Supreme Court of Arkansas

June 29, 1914

Appeal from Woodruff Circuit Court, Northern District; J. M Jackson, Judge; reversed.

STATEMENT BY THE COURT.

Appellant sued to recover damages under the following complaint:

"That the defendant, C. R. Stacy, and Charles N. Wilkes were engaged in the general merchandise business, under the firm name of Wilkes & Stacy, during the year 1911; that on the 29th of October the defendant sold to this plaintiff his entire interest in said store, this plaintiff thereby succeeding to said business of Wilkes & Stacy, for the sum of $ 3,640 (which was paid to the defendant), and the further consideration of an allowance of $ 75 per month to the defendant for the year 1911 for salary, and as a further consideration to this plaintiff for the payment of said sum of money, defendant agreed to furnish this plaintiff with his entire furnishing trade for the year 1912. It was agreed that said "furnishing trade" mentioned in the memoranda was to consist of goods and merchandise to be furnished the hands and tenants of the defendant for the year 1912, the payment of which he, defendant, obligated himself and promised to pay; said credit being extended solely to defendant.

"A memorandum of said contract and agreement was reduced to writing and in duplicate, and a copy of said memorandum is attached hereto, marked exhibit 'A,' and made a part hereof. That at the time said contract was made it was agreed between the plaintiff and the defendant that the 'furnishing trade' in the contract was to consist of the necessary articles, goods and merchandise to be furnished the tenants and employees of the defendant for the purpose of maintenance during the year 1912. That said furnishing was to be of the goods, merchandise and articles handled and sold by this plaintiff. Plaintiff states that in compliance with his agreement he bought and purchased the necessary goods and merchandise and articles to comply with said agreement, at a cost of $ 5,000, and stood ready at all times during the said year 1912 to furnish and deliver the same. Plaintiff further states that in violation of said contract and agreement the said C. R. Stacy failed and refused to deliver his 'furnishing trade' as agreed upon with this plaintiff for the year 1912, and directed and delivered it to the E. H Conner Mercantile Company, a firm doing a competitive and similar business to this plaintiff in the town of Augusta. That during said year of 1912, the said C. R. Stacy delivered to the said E. H. Conner Mercantile Company the accounts of his said hands, for which he became liable, which he agreed and contracted to place with this plaintiff, to the amount of $ 2,516. That under said contract and agreement, he agreed to buy goods from this plaintiff, the gross amount of which was $ 2,516; that the contemplated profits on said 'furnishing trade' was the consideration for which plaintiff made the contract herein mentioned.

"That said profits amounted to the sum of $ 960; that by reason of defendant's failure to furnish said 'trade' as agreed upon, this plaintiff is damaged and injured in the sum of $ 960, this being the net profit to this plaintiff on said goods and furnishings which were furnished to defendant's hands and tenants on account and credit of defendant contemplated by the contract herein, for the year 1912.

"Premises considered, plaintiff prays that he have and recover of and from the defendant the sum of $ 960 and all costs in this suit expended."

The exhibit mentioned in the complaint, as being attached to it was as follows:

"Agreement issued in duplicate form between C. R. Stacy and T. D. Wilkes.

"I, Conner Stacy, agree to take the amount of money I paid in the store of T. D. Wilkes & Bro., $ 3,640.33 (three thousand six hundred and forty and 33/100 dollars), and a salary of $ 75 per month for the year 1911 for services rendered and to be rendered, for my entire interest in said store now owned by Wilkes & Stacy. C. R. Stacy agrees to let T. D. Wilkes, or his agents, have his entire furnishing trade for the year 1912. T. D. Wilkes agrees to allow the said C. R. Stacy 10 per cent discount on goods furnished the said C. R. Stacy's hands at the end of season 1912.

(Signed)

"C. R. Stacy.

"T. D. Wilkes.

"Witness: C. N. Wilkes."

A demurrer was sustained to this complaint, and this appeal has been duly prosecuted from the order of the court dismissing the cause of action.

Judgment reversed and cause remanded.

Harry M. Woods, for appellant.

1. The damages alleged in the complaint were not speculative, or indeterminable, but the allegations are specific and accurate, and the profits claimed are certain and probable. This case falls within the rule stated by this court in S.W. Tel. & Tel. Co. v. Memphis Tel. Co., 111 Ark. 474; see also 13 Cyc. 51-54; 69 Ark. 219; 78 Ark. 336; 80 Ark. 228; 91 Ark. 427; 95 Ark. 363; 97 Ark. 135; 103 Ark. 584.

2. It may be conceded that the term "furnishing trade" used in the contract is indefinite, yet the complaint alleged specifically the meaning and use of the term, and parol evidence was admissible to show its particular meaning among business men in the section of the country in which it is used. Lawson on Contracts (1893), § 383; 106 Ark. 409, and cases cited; 9 Cyc. 578, 582, 587 and 772; 85 Ark. 576.

S. Brundidge, for appellee.

1. Appellant, in his complaint, attempted to change and vary the terms of the written contract. He can not change or vary the terms of the contract by parol. 94 Ark. 130; 105 Ark. 50; 54 Ark. 423; 100 U.S. 686-692.

2. The profits alleged in the complaint, for the loss of which appellant seeks to recover, are too speculative and remote. Cases cited by appellant; 106 Ark. 400-410.

SMITH, J. MCCULLOCH, C. J., and HART, J., dissenting.

OPINION

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

The allegations of the complaint appear to be more specific and definite than those contained in the exhibit. The complaint alleges the meaning of the term "furnishing trade" as used in the exhibit. The meaning of trade terms may be shown. The rule in such cases is stated in Lawson on Contracts, (2 ed.), § 390, p. 450.

"The customs of particular classes of men soon give to particular words different meanings from those which they may have among other classes, or in the community generally. Mercantile contracts are commonly framed in a language peculiar to merchants, and hardly understood outside their world. Agreements which are entered into every day in the year between members of different trades and professions are expressed in technical and uncommon terms. The intentions of the parties, though perfectly well known to themselves, would be defeated were the language employed to be strictly construed according to its ordinary meaning in the world at large. Hence, while words in a contract relating to the ordinary transactions of life are to be construed according to their plain, ordinary and popular meaning, yet if, in reference to the subject-matter of the contract, particular words and expressions have by usage acquired a meaning different from their plain, ordinary and popular meaning, the parties using those words in such a contract must be taken to have used them in their peculiar sense. And so words, technical or ambiguous on their face, or foreign or peculiar to the sciences or the arts, or to particular trades, professions, occupations, or localities, may be explained, where they are employed in written instruments, by parol evidence of usage."

This question was recently thoroughly considered by this court in the case of Paepcke-Leicht Lbr. Co. v. Talley, 106 Ark. 400, 153 S.W. 833, in which case it was said: "Ordinarily, it is the duty of the court, in the trial of cases, to construe a written contract and declare its terms and meaning to the jury. But where the contract contains words of latent ambiguity, or where technical terms are used or terms which, by custom and usage, are used in a sense other than the ordinary meaning of the words, oral testimony is admissible to explain the meaning of the terms or words used, and the question may be submitted to the jury to determine in what sense they are used." And the same opinion quotes from Wood v. Kelsey, 90 Ark. 272, 119 S.W. 258, the following language: "Courts may acquaint themselves with the persons and circumstances that are the subject of the statements in the written agreement, and are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, and so as to judge of the meaning of the words and of the correct application of the language to the things described."

It is urged by appellee that appellant undertook in his complaint to enlarge and vary the terms of the contract for the sale of the stock of goods. But the exhibit is merely evidentiary of the terms of the sale, and the sufficiency of the complaint is to be determined by a consideration of its allegations. We need not consider any possible difficulty which appellant may experience in proving the allegations of his complaint, as no such difficulties are before us, when the sufficiency of the complaint is tested on demurrer. We think the allegations of the complaint are sufficiently definite and certain to state a cause of action. It is urged that the complaint does not state what articles appellee would desire furnished to his tenants during the year 1912 and that the complaint does not state the quantity of such articles. But it can not be assumed that appellee did not know what articles he would wish to purchase from appellee, nor can we assume that ap...