Ford v. Fix

Wood, J., (after stating the faots). The undisputed evidence showed that appellant paid to appellee for his interest in the stave business the sum of $1,607.43. There were at that time about 80,000 staves, 30,000 of which had been bucked and were ready for market, and the others were to be made ready and marketed as soon as practicable. Appellant was to give appellee one-fourth of the profits in the. business in consideration of appellee’s guaranty to appellant of “the amount paid on account of Faulkner County staves.” It was shown that appellant received- out of the staves then on hand, after same were marketed, the sum of $1,379.85. This sum deducted from the amount paid the. appellee shows a balance of $227.58 due by appellee .to the appellant on the contract of guaranty, and this is the sum for which judgment should have been rendered in favor of the appellant under the plain provisions of the written contract. The contract is unambiguous. There was testimony on behalf of the appellant tending to show that after the purchase of appellee’s interest in the business and after the contract of guaranty was executed that he expended an additional sum of $345.15 to complete the hauling and handling of the staves. There was also testimony on behalf of appellant tending to show that he should have received a profit out of the staves on hand that were sold by Ausley in the sum of about $350. But under the plain terms -of the guaranty, we are of the opinion that appellant was not entitled to recover any amount paid out by him for the purpose of making ready and getting the staves that were then on hand to market. Nor was he entitled to recover of appellee on the contract of guaranty any profits resulting from the sale of the staves. As we construe the contract, appellee only guaranteed that appellant should receive out of the staves then on hand the amount that he had paid appellee for such staves. The contract of guaranty did not include any amounts expended by appellant (after his purchase) by way of putting the staves on the market or any other expense incident to the stave business, nor did the guaranty contract include any profits to be made out of the business. We must assume, therefore, that the court ignored the testimony on behalf of the appellant tending to show the amount of money he had expended in addition to the purchase money and the amount of profits that he should have received from the sale of the staves. All of the testimony in the record on behalf of the appellant which tended to prove that appellee guaranteed the amount of' staves and the good faith and honesty of Ausley, his partner, in the further conduct of the business, and that the appellant was to receive one-fourth of the profits and all the money that he might thereafter expend in the business, was incompetent and tended to contradict and vary the terms of the written contract of guaranty, and can not be considered. High-smith v. Hammonds, 99 Ark. 400; Delaney v. Jackson, 95 Ark. 133; Bradley Gin Co. v. Means Machinery Co., 94 Ark. 130. In the recent case of Zearing v. Crawford, 102 Ark. 575, we said: “The writing itself must be accepted as the sole evidence of agreement between the parties. * * * The parties reduced their agreement to writing, and by that alone are their rights to be tested. It is an inflexible rule of evidence that all antecedent proposals and negotiations become merged in a written contract, which can not be waived by parol testimony. This is elementary. ” There was testimony on behalf of appellee tending to show that, after appellant had purchased appellee’s interest, he made no effort to sell the staves, but we are of the opinion that the clear preponderance of the evidence showed that the appellant did all that he was required to do under the contract of guaranty. That contract required “the sales and marketing of the staves to be had to the best advantage. ’ ’ But aside from the express language of the contract, appellant was under the implied obligation to make sale of the staves to the best advantage under the circumstances. It was incumbent on him to act in good faith and he did so. It could serve no useful purpose to set out and discuss the testimony bearing upon this issue of fact, but we are of the opinion, after careful consideration, that appellant did not forfeit his rights under his contract of guaranty by any failure on his part to comply with such contract and to do what he was required to do under the contract in selling and marketing the staves to the best advantage. In construing the contract, any doubts must be resolved in favor of appellant, for appellee himself wrote the contract. Taylor v. Union Sawmill Co., 105 Ark. 519; Ford Hardwood Lumber Co. v. Clement, 97 Ark. 522; Mississippi Home Ins. Co. v. Adams, 84 Ark. 431. Under the contract appellant was not responsible for the delinuencies of Ausley in the selling of staves. The court therefore erred in dismissing appellant’s complaint and the judgment, in that respect, will be reversed and judgment will be entered here in favor of the appellant for the sum of $227.58, the amount shown to be due him, by the undisputed evidence, upon the contract of guaranty, with interest thereon at 6 per cent per annum from the 13th day of January, 1913, the date of the institution of this suit.