Scott v. McCraw, Perkins & Webber Co.

119 Ark. 133 | Ark. | 1915

■Smith, J.,

(1) ('after stating the facts). We think no error was committed in permitting appellees tb file an answer to the cross-complaint after the proof had all been taken and before the case was submitted. The effect of the proof which had been taken was to put in issue the al-' legations of the cross-complaint, and no prejudice could have resulted to appellant in having the truth of the allegations of his cross-complaint formally denied. Beekman Lbr. Co. v. Kittrell, 80 Ark. 228.

(2-3) No error was committed by the court in refusing to transfer the cause to the- circuit court. The cause was transferred to the chancery court upon appellant’s motion, and he is in no position to complain of that action of the court, even though the order was improperly made. It is not contended that under the allegations of the pleadings this transfer was improper. It is only urged that after the proof had been taken it then appeared that there was no ground upon which the cause should have been transferred to the chancery court. But we do not agree with that contention. If appellant is correct in his theory of this case, and is entitled to recover the damages claimed by him, these damages could be ascertained only after much accounting. Under the allegations of appellant’s cross-complaint numerous bales of cotton had been sold at different times at less than the prevailing market price, ¡and a determination of the price which the various bales of cotton should have brought would have involved a consideration of the grades and character of the cotton, and in view of the accounting which would have been necessary to determine those questions, if the proof 'had made it necessary to pass upon them, we think the case was properly transferred to the chancery court.

The principal question in the case is whether or not appellant’s instructions in regard to the sale of his cotton were obeyed. The parties do not disagree about the law upon this subject, and appellees concede that it was their duty to have followed appellant’s instructions, but they claim that they did so. The proof shows that some of the cotton was held for months, and that a very considerable loss was sustained as a result of this action; but appellees deny ever having received instructions to sell the cotton ibelow 16 cents, the price per pound fixed ¡by appellant when he first ordered the cotton held, and that this price could not be obtained. We will not undertake to review the evidence upon this question, 'but announce our conclusion to be that the finding of the chancellor does not appear to have been clearly against the preponderance of the evidence.

(4) The chancellor disallowed, however, the claim for commissions upon the cotton which appellant failed to ship, and appellees have prosecuted a cross-appeal from that finding. The decree of the chancellor in this respect must be reversed. The proof does not show that this contract for the shipment of cotton was designed as a cloak for usury. Upon the contrary, appellant had, in former seasons, shipped the quantity of cotton here contracted for, and it was in the contemplation of the parties that this amount of cotton should be shipped during the season covered by the agreement. Such provisions have been upheld as a stipulation for liquidated damages for breach of the contract to ship the cotton. Allen-West Commission Co. v. Peoples Bank, 74 Ark. 41; Blackburn v. Hayes, 59 Ark. 366.

The decree of the chancellor upon the appeal is affirmed, 'and upon the cross-appeal his decree in favor of appellees will be modified and a decree will be rendered here for the sum of $2,519.59, with interest from February 27, 1912, at 6 per cent, the difference between the decree here rendered and the one pronounced by the court below being the amount due on account of commissions on cotton not shipped.

McCulloch, C. J., disqualified aud not participating.