74 Ark. 41 | Ark. | 1905
(after stating the facts.) This is an action by a commission company, which sues as a Missouri corporation, to recover a balance which it alleges is due it from the defendants on a contract. The answer of the defendants expressly denied that plaintiff was a corporation, and they now contend that the judgment should be reversed, because there was no proof that plaintiff was a corporation. But the record shows that the defendants did not insist upon this point at the trial. The court did not refer to the matter in its findings, and was not asked to do so, and the motion for new trial filed by the defendants does not, as we think, raise any such question. Having ignored the matter in the trial below, and called for no ruling of the trial court thereon, it is too late to raise the question now.
The next contention on the part of the defendants is that the provision in the contract for the payjnent of $1.25 for each bale of cotton that the defendants failed to ship under their contract was a stipulation in regard to the interest to be paid for the loan or use of money, and rendered the contract usurious; but we can. not concur in this contention. The whole evidence, as well as the contract itself, shows that the purpose of this contract, so far as the plaintiff was concerned, was to induce defendants to ship them cotton. The stipulation in reference to the payment of $1.25 per bale of cotton not shipped, in the event of the failure on the part of the defendants to carry out their contract in reference to the shipment of cotton) was in the nature of a stipulation for liquidated damages for breach of such contract. If defendants had carried out their contract, there would have been no liability in that respect, and we think the circuit court was clearly right in holding the contract not to be usurious.
A more ’difficult question arises on the contention of the plaintiff that under the contract the defendants were required to ship one bale of cotton for each $10 of the balance of $343 carried over on account from the year 1896, as well as for the $2,500 advanced in 1897. This construction of the contract would require that defendants should ship 34 bales on the account and 250 on money loaned, making 284 bales in all, whereas the circuit court held that they were required to ship only 250 bales. The provisions of the contract on this point are contradictory. The first part of the contract plainly supports the contention of plaintiff, but the contract winds up with the statement that “this guaranty is for two hundred and fifty bales of cotton.” While the original contract is not before us, a consideration of its language makes it seem very .probable that it was prepared on a blank form in use by the plaintiff. It speaks of advances to be made during the “spring and summer” of 1897, when the contract was not executed until June, 1897, after the spring had passed. But this stipulation that the guaranty was for 250 bales was evidently an addition put in expressly to show the intention of the parties in reference to this particular contract, and for that reason must override the other and more general provisions of the contract.
As this contract was prepared by the .plaintiff, we think that if there is conflict in its terms, or any reasonable doubt as to its meaning, those doubts should be resolved in favor of defendants, who may have been misled by the conflicting terms and provisions put in the contract by plaintiff. In other words, as plaintiff is to blame for any uncertainty in the meaning of this contract, it is right that the language used should be construed most strongly against it.
For these reasons, we are of the opinion that the finding of the circuit court as to meaning of this contract, both in respect to the number of bales to be shipped and the amount to.be paid, was correct. On the whole case, finding no error, the judgment is affirmed.
