Brockman Commission & Cold Storage Co. v. Pound

McCulloch, J., (after stating the facts.) This controversy grew out of a dispute between the parties as to the character of the contract under which the chickens were shipped, Dante contending that he shipped them under a contract of sale, and appellants contending that the chickens were to be shipped for sale on commission. Appellee introduced testimony tending to show that appellant’s traveling solicitor and authorized agent entered into a contract with Dante at Danville whereby he agreed for appellant to purchase from Dante chickens to be shipped to Eittle Rock to be paid for by appellant at the market prices then prevailing, not less than $2 per dozen, and that at the time the two consignments in question were received in Tittle Rock the market price of the chickens of the kind shipped exceeded $2 per dozen. On the other hand, appellant denied the contract of sale, or that the agent was authorized to make such a contract, and introduced testimony tending to show that no such contract was made, but that the agent only agreed for appellant to receive the chickens for sale on commission, and gave Dante a written statement or list of prices then thought to be prevailing in Tittle Rock showing chickens to be worth from $2 to $3.50 per dozen. The testimony introduced by appellant also tended to show that its agent, Knapp, was not authorized to purchase chickens nor to guaranty prices on consignments to appellant. The court gave the following instruction at the request of appellee: “If you find from the evidence that Geo. P. Knapp, agent for the defendant, made a contract with Dante to pay him from $2 to $3.50 per dozen for chickens, and that Knapp had authority to make such a contract, you will find for the plaintiff at a price between $2 and. $3.50 per dozen, as you find the evidence establishes what the chickens were worth.” And the following at the request of appellant: “If the chickens were consigned to the defendant to be sold upon commission, and if defendant exercised ordinary care, that is, the care of an ordinary prudent business man, in the sale of the chickens, then it cannot be held liable for any thing more than the price for which chickens were sold to his customers.” These two instructions put the issue fully and fairly before the jury, and the finding of the jury was to the effect that the agent made a contract of sale with Dante, and that the same was not without the apparent scope of his authority. There was evidence sufficient to sustain the finding on both those questions. Two witnesses testified to a positive contract for sale of the chickens, and that Dante expressly declined to ship the chickens for sale on commission. The testimony of another witness tended strongly to establish the same fact. Appellant was engaged in the general commission business and wholesale dealer in butter and eggs, and Knapp was its traveling agent and solicitor, with express authority to sell the goods in which appellant dealt, to buy hides and wool, and sometimes, with appellant’s approval, he bought potatoes in carloads. The proof was such that it became a question of fact to be submitted to the jury to decide whether or not the purchase of chickens was within the apparent scope of his employment. Jacobson v. Poindexter, 42 Ark. 97; Liddell v. Sahline, 55 Ark. 627; Jacoway v. Insurance Co., 49 Ark. 320; Keith v. Herschberg Optical Co., 48 Ark. 138. It is argued that the contract is within the statute of frauds, and void because not in writing, but appellant accepted and received the property sold, which took the contract out of the operation of the statute. Judgment affirmed.