70 Ark. 232 | Ark. | 1901
(after stating the facts.) First. The appellee introduced evidence tending to prove that he and Abe Bloch entered into a verbal contract by which appellee was to perform extra services as superintendent on the building in Cleveland, Ohio, and that he was to receive pay for such services from the appellant by a credit on his account with appellant for merchandise. This alleged agreement, it is claimed, was made at Cleveland, Ohio, sometime after the execution of the written contracts. In the fourth instruction the jury are permitted to find “a reasonable amount for extra services, if any, as superintendent,” etc. The only counterclaim for superintendence set up in the answer is that arising out of the written contract, under which it is alleged all of the goods were purchased. This contract provides for superintendence. The appellee did not ask to amend his answer to conform to the proof. We cannot treat it as amended after verdict, for appellant objected to the evidence and to the instruction. In the absence of appropriate allegations setting up a counterclaim for superintendence under the alleged verbal contract, the court erred in admitting proof or instructing the jury upon the subject.
But, even if we concede that the sweeping allegations of the answer are sufficient to set up a counterclaim against appellant under an alleged verbal contract for superintendence, still, in our opinion, the proof utterly fails to establish the liability of appellant for such superintendence. If all the goods were purchased of appellant under the written contract, as expressly alleged, then there was no consideration to appellant for a verbal contract by which it agreed to pay for the alleged extra services of the appellee as superintendent on a building belonging to the Bloch Realty Company. Such an agreement, if made, was voluntary, a mere nudum, pactum,. No counterclaim could be based on it.
Furthermore, Abe Bloch denies, in his evidence, such contract While there was evidence tending to show that Abe Bloch did enter into such a contract, and that he had authority to make contracts for the appellant for the sale of goods and to settle its accounts, there is no proof whatever that he had any authority to make a verbal contract with the appellee on behalf of appellant binding appellant to pay for services rendered the Bloch Realty Company, an independent corporation. The making of such contract was not within the apparent scope of his authority. This disposes of the counterclaim for superintendency under the verbal contract. That was a matter between appellee and the Bloch Bealty Company, or Abe Bloch. It was no concern of appellant.
Second. The counterclaim under the written contracts or contract was established. The contracts should be read together, and considered as one and entire, with the two companies on one side and Metzger on the other. The appellant signed contract “B,” which had for its sole consideration, so far as Metzger was concerned, contract “A.” Considered as one contract, the companies covenant that they will pay Metzger a certain price for doing the carpenter work, superintending, etc., on a certain building in Cleveland, Ohio, and that they will furnish him certain goods, etc., upon certain conditions. Metzger, on his part, covenants that he will do the work and buy the goods upon the terms and conditions agreed upon. The two companies are composed entirely of B Lochs, and all these Blochs, except one, were largely interested in both companies. While nominally and technically they were separate corporations, yet, so far as these contracts were concerned, in their manner of dealing with Metzger, they were, to use the language of Abe Bloch, “the same people.” The jury might have found that Abe Bloch, who was president of botlr companies, and who negotiated the contracts with Metzger, intended that Metzger should understand that the interests of the companies in the contracts were mutual, and that both should be responsible to him for fulfillment. It is immaterial whether the legal status of appellant under the evidence was that of principal or guarantor. In the form in which the suit was brought, the result to appellant would be the same. There was proof to support either view. Considerations in a contract are necessarily reciprocal. The consideration to Metzger was the money he was to receive for -his work, superintendence, etc., on the building in Cleveland, Ohio. He agreed, in consideration of this, that he would buy goods of appellant. The agreement was made primarily, it seems, with the Bealty Company, that he should buy the goods. Neither the Bealty Company nor appellant, as beneficiary of that provision, could enforce the contract in that particular without complying with the cpvenant to pay him for the work, etc., on the building. They could not compel him to pay for goods bought, so long as they refused to pay him for the house he„ built. There was no provision in contract “A” as to how, when, or to whom the balance that might be clue him when he finished the work on May 1 should be paid. These important matters were therefore susceptible of oral proof. The provision in contract “B” was that all goods purchased by Metzger before May 1, 1897, should be paid for on that day; those purchased after to be paid for every sixty days. But there was nothing in the contract binding the appellant to sell, or Metzger to buy, goods after the work was finished, May 1,— the time for the termination of the building contract. These are most cogent facts in corroboration of the testimony of the- Metzgers that the understanding with Abe Bloch was that the appellant should receive its pay for goods out of what was due Metzger for work on building, — that one account should offset the other, etc., as set up in the answer. There are many other circumstances, but wre will not further detail evidence or elaborate reasons.
We do not conceive that the questions of ultra .vires and of accord executory have any place in the case. The appellant could not receive benefits under the contract, and then repudiate its obligations.
Our conclusion of the whole matter, from a review of the evidence in the transcript, is that appellant was liable on the counterclaim of $730 set up in the answer.
Except for the errors indicated, the instructions of the court were correct.
Third. The Realty Company was a proper party defendant, if the appellee had desired to make it so. But the appellant had the right to maintain the suit without joining the Realty Company.
Fourth. By deducting from the appellant’s account of $1,632.22 the sum $730 as of date August 3, 1898, — the date from which appellant assents that interest may be computed on the balance, — we allow all that appellee claimed or could have recovered below under the counterclaim set up under the written contracts. The judgment will therefore be reversed, and judgment entered here for appellant for $902.22 with interest on the same at 6 per cent, per annum from August 3, 1898.
