Baker Ice Machine Company v. Powell

Hart, J., (after stating the facts). The sole ground relied upon for a reversal of the judgment is that the evidence is not legally sufficient to support the verdict, and in this contention we think counsel for appellant are correct. We are of the opinion that there is no evidence in the record legally sufficient to show that the Moody Engineering Company was the -selling agent of appellant at the time the transaction in question was had, and, even if the Moody Engineering 'Company had been the selling agent of appellant, that would not help the case of appellees any, because the sale of the articles sought to be recovered by appellant was made directly to the Moody Engineering Company. In the cóntract between the Moody Engineering Company and the Arkansas Cold Storage & Ice 'Company the former designates itself as the factory representative of the Baker Ice Machine Company ; but this representation did not affect appellant. It is well settled in this State that the relation of principal and agent cannot be shown by the declarations of the agent. Moore v. Ziba Bennett & Co., 147 Ark. 216. The designation by the Moody Engineering -Company that it was the factory representative of the Baker Ice Machine Company in its written contract with the Arkansas 'Col-d Storage & Ice Company could amount to no more than a declaration of its agency for the Baker Ice Machine Company. The latter could not be affected by this declaration because it was not a party to the contract, and it is not shown that it had any knowledge that such representation had been made. For like reason, the writing in the check from the / rkansas Cold Storage & Ice Company to the Moody Engineering Company that the latter was the factory representative of the Baker Ice Machine Company amounted to no more than a declaration of its agency. It is not shown that the Baker Ice Machine Company ever saw the check or knew that any representation of agency had been written in it. Even if it should be conceded that the proof was sufficient to establish such agency, this would not help the case of appellees. The reason is that the sale of the material in question was made directly by the Baker Ice Machine Company to the Moody Engineering: Company, and the former had as much right to sell to its agent as it did to any third person. The Arkansas Cold Storage & Ice Company was not a party to the contract, and the fact that the material purchased by the Moody Engineering Company was to be used in its ice factory did not in any sense make the Arkansas Cold Storage & Ice Company a party to the contract or give it any rights thereunder. The order for the material or equipment was in writing signed by the Moody Engineering Company and was sent by it directly to the Baker Ice Machine Company. The Arkansas Cold Storage & Ice Company was not referred to in the contract, and the fact that the equipment purchased was to be installed in its factory did not give it any rights under the contract. It is true that the car of material was unloaded at the plant of the Arkansas Cold Storage & Ice Company, and that the freight was paid by the latter company. The payment of the freight, however, was merely an advance , of money by the Arkansas Cold Storage & Ice Company to the Moody Engineering Company under its contract for installing the equipment in its plant. Therefore, the advancement of the money with which to pay the freight did not give the Arkansas Cold Storage & Ice Company any rights under the contract. The car of material was consigned directly to the Moody Engineering Company at Fayetteville, Ark., and the Arkansas Cold Storage & Ice Company was not considered in the matter at all by the Baker Ice Machine Company. Under these circumstances the fact that the material was unloaded at the plant of the Arkansas Cold Storage & Ice Company did not give it any rights in the premises. The undisputed evidence shows that the material in question was included in the shipment by the mistake of the shipping clerk of appellant. This fact is testified to, not only by the agents of appellant, but by the president of the Moody Engineering Company. It is true that the material was suitable for use in the plant of the Arkansas Cold Storage & Ice Company, but it was not necessary. The material was laid out for a .job very similar to the one for the Arkansas Cold Storage & Ice Company, but it was not needed for that job and was in addition to the material which was ordered for -that job by the Moody Engineering Company. While it was suitable for the job, it was practically a duplication of that which was ordered and used on the .job and was not needed or used at all. It was included in the shipment made by appellant to the Moody Engineering Company by mistake, and the Arkansas Cold Storage & Ice Company had no right to prevent the Moody Engineering Company from returning the articles because that company had failed to comply with its contract, or for any other reason. The undisputed evidence shows that the material in question was shipped by appellant by mistake to the Moody Engineering Company, and the Arkansas Cold Storage & Ice 'Company had no right at all to prevent its return or to keep it. The result of our views is that the court erred in not directing a verdict for appellant under' the evidence introduced, and for that error the judgment must be reversed, and the cause will be remanded for a new trial.