Stripling v. Rudy

Hart, J., (after stating the facts). It is insisted by counsel for the plaintiffs that Thomas and Rudy were partners, and should he 'held accountable to the trustees of the cantaloupe growers in that capacity. Without deciding that question, we shall assume that they were partners for the purposes of this decision. The real question is whether or not Thomas and Rudy accounted to the cantaloupe growers for the pro- ■ ceecLs oí the 'sale of the cantaloupes, 'after deducting all proper charges and commissions. It will be noted that the cantaloupe growers became dissatisfied with the way Thomas and Rudy were handling the shipments .of cantaloupes. This caused the growers to select Pittman and Stripling to represent them and to adjust the differences between them and Thomas and Rudy. The parties entered into the agreement, dated August 3, 1921, which is copied in our statement of facts. Under that agreement Thomas and Rudy were to1 furnish to the trustees statements showing the sales of the cars of cantaloupes, and render an account to them for the net proceeds. This was done by Rudy. He made a statement showing the proceeds of the sale of each car of cantaloupes. This statement includes the name of the person to whom the cantaloupes were shipped 'and the amount derived from the sale thereof. The statement also includes freight charges, cartage charges, and the cost of crating the cantaloupes. No useful purpose could be served by setting out each itemized statement in detail. Some of them show that the cantaloupes were .sold at a profit, and some of them show that they were sold at a loss. Rudy rendered an itemized account of all the shipments, as he was required to do under the contract of Aug. 3, 1921. The net result of his whole statement is that the cantaloupes sold for less than the freight charges, expenses of cratins: them, and commissions. The evidence for the plaintiffs does not show that Rudy acted dishonestly in handling and selling the Cantaloupes. The burden of proof in this respect was upon the plaintiffs. Carter v. Franklin County Rd. Imp. Dist., 152 Ark. 302. The contract between the parties required Rudy and Thomas to make a detailed statement showing the proceeds of the sale of each car of cantaloupes and the expenses of sale. As we have already seen, Rudy made an itemized statement of the amount received from the sale of each, oar of cantaloupes, the name and place of business of the person to whom they were sold, and the freight charges and the oo-st of crating them. If' Rudy did not honestly or in good faith render a proper accounting, the' plaintiffs should have shown that fact by legal evidence. This they could have done by requiring Rudy and Thomas to exhibit to them the bills of lading, which would have shown the freight charges. They could have shown whether or not Rudy and Thomas received the market price for the ¡cantaloupes at the places where they were sold. Of course, this would have required some trouble .and expense on the part of the growers, but this is the fault ¡of the system adopted by them and is not a defect in the law. They had a right to adopt whatever agencies they ¡chose to dispose of their cantaloupes, and, having made a contract with Rudy and Thomas for them to account for the net proceeds derived from the sale of the ¡cantaloupes, they must abide the result of their own agreement, or show that their agents did not faithfully account to them. The law cannot protect the growers from the alleged dishonesty of their selling agents, unless they establish such dishonesty by evidence. There is no proof in the record that Rudy and Thomas have falsified the ¡statement rendered by them of the net proceeds derived from the sale of the cantaloupes. The plaintiffs, having failed to establish by evidence that the defendants did not properly account to them for the net proceeds derived from the sale of the cantaloupes, are not entitled to recover in this case, and the ¡court properly dismissed their complaint for want of equity. It follows that the decree must be affirmed.