Wrought Iron Range Company v. Young

• Decision Date: 27 January 1908
• Citation: 107 S.W. 674,85 Ark. 217
• Parties: WROUGHT IRON RANGE COMPANY v. YOUNG
• Court: Arkansas Supreme Court

107 S.W. 674

85 Ark. 217

WROUGHT IRON RANGE COMPANY v. YOUNG

Supreme Court of Arkansas

January 27, 1908

Appeal from Ouachita Circuit Court; Charles W. Smith, Judge affirmed.

STATEMENT BY THE COURT.

The appellee, in his complaint, omitting formal parts, alleged that:

"In the years 1897, 1898 and 1899 he entered into written contracts with the Wrought Iron Range Company, a copy of which contracts is filed herewith marked 'Exhibit A,' and the same are made a part of this complaint; that he worked under these said contracts during the years 1897, 1898 and 1899, and performed his part of said contracts faithfully; that for his service under said contracts during the years 1897 and 1898, and due on the first day of January, 1899, the said defendant is indebted to the plaintiff in the sum of $ 774.57, which bears six per cent. interest from the first day of January, 1899, to this date. That for his commissions under said contracts for the year 1898, collected in 1899, and for his commissions for the year 1899, collected by defendant in 1899 and 1900, the said defendant is indebted to plaintiff in the sum of $ 600, which was due on January 1, 1901, and which bears six per cent. interest from the first day of January, 1901. That during the year 1898 plaintiff was employed by defendant, outside of said contract and without any reference to the same, to superintend collections for said defendant for six months, and that for said services there was no amount agreed upon, but that the said services are well worth $ 100 per month, making the amount due plaintiff by said defendant for superintending said collections the sum of $ 600."

Appellant answered, admitting the contracts of employment but denying that appellee had discharged his duties under the contracts strictly and faithfully, and denying that anything was due under the contracts. The second paragraph of the answer denied that it employed plaintiff during the year 1898 to superintend its collections for the period of six months, or for any other period, and denied that plaintiff is entitled as compensation for his alleged services to the sum of $ 100 per month, or any other sum, and denied that plaintiff did superintend the collections, or perform any work for defendant not embraced in the contract aforesaid." The third paragraph was made a counterclaim against plaintiff the appellant setting out the contracts referred to, and alleging that plaintiff under said contracts overdrew on his own account and was paid the sum of $ 549.65 in excess of the amount that was owing him, and permitted the men under his supervision, during the year 1897, 1898 and 1899, to draw in excess of the commissions due them $ 1,345.18, and prayed that it be given judgment against plaintiff for the total of these two amounts, towit: $ 1,894.83.

The contracts were in evidence, and showed that appellee was to receive as his compensation for superintending salesman engaged in selling Home Comfort Ranges for appellant "a commission as follows: For an average monthly sale of fifty ranges or less a commission of $ 2.00 each; for an average monthly sale of fifty-one to sixty ranges, inclusive, a commission of $ 2.50 each; for an average monthly sale of sixty-one or more a commission of $ 3.00 each; said average to be based upon cash sales and good notes. In no case however, are commissions on such sales due or payable until notes taken for them are collected in full without legal process sixty days after their maturity. Said commissions shall not be payable until the first day of January following the date of this contract, nor until the books of the company can be closed for the year, which shall not be later than March 1st."

There are other provisions of the contract prescribing the duties of appellee, among which are the following: "To personally inspect all notes and sales made by men under his supervision and to ascertain if any promises or verbal agreements have been made by such men and left unfulfilled to report each month to his general superintendent the work inspected and its condition; to settle the books of all men under his supervision on or about the first of each calendar month, and transmit them immediately, together with his monthly report, and all cash on hand in excess of $ 500, to said company at Denver; any failure upon his part to discharge these duties shall be sufficient grounds for the termination of this contract."

There are certain other provisions as to overdrafts not necessary to set forth. And the further provisions as to deductions and settlements as follows:

"4. Ten per cent. of all losses upon notes received for sales made by men under his supervision during the term of this contract shall be deducted from amount due him; and any balance due on notes for ranges taken up and returned to the company shall be accepted as losses.

"6. Returns of collectors as to collections of notes or sales made by men under supervision of the party of the second part shall be accepted as conclusive in settlement between him and said company."

Other evidence was introduced, and the cause was submitted to the jury, who returned a verdict in favor of appellee for $ 985.20. Motion for new trial, reserving all exceptions saved was overruled, judgment was entered for appellee, and this appeal was taken. Other facts stated in the opinion.

Judgment affirmed.

Moore, Smith & Moore, for appellant.

1. To enable one to recover upon an account stated, he must declare upon it as such. 108 F. 723; 1 Enc. Pl. & Pr. 88; 81 N. P. 268; 74 Ark. 472; 39 Minn. 467. The court should have excluded the evidence as to stated account because it was at variance with the allegations of the complaint, and it should have given the sixth instruction requested by appellant, because appellee had not sued on an account stated. It should also have refused instruction two given on behalf of appellee.

Smead & Powell, for appellee.

OPINION

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

1. There was testimony in the record, properly abstracted in brief of counsel for appellant, which it is unnecessary to set out here, that tended to prove that appellant furnished appellee a statement of account in the early part of 1898 (March), showing the result of the business for 18...