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(289 F.) ords of the county court show there was competitive bidding, and that the contracts were let to the lowest bidder. The files and records do not show explicitly and affirmatively that notices were posted as required by the statute. On the other hand, the files and records do not show that notices were not posted. The presumption is that notices were posted. There was some testimony, negative in character, that notices were not posted. But, irrespective of what the fact may be, the failure to give notice would be a mere irregularity, not affecting the validity of the contract. In Driver v. Moore, 81 Ark. 80, 98 S. W. 734, the Supreme Court of Arkansas said:

"The validity of appellee's contract for the construction of the ditch is attacked on the ground that the viewers made their final report one day in advance of the time fixed by the court, that there was no notice given of the letting of the contract, and because the contract was let en masse, instead of in separate allotments. These are mere irregularities which do not affect the validity of the contract."

See, also, Chapman & Dewey Land Co. v. Wilson, 91 Ark. 30, 120 S. W. 391.

In addition to the allegation that the contracts were let privately, without notice, and without competitive bidding, it is alleged that they were made and entered into between the Builders' Company and the county judge fraudulently and collusively, at grossly excessive prices. It is further charged that false and fraudulent entries were entered in the records of the county, purporting to show that the statute governing the letting of the contracts had been complied with, while in fact the requirements of the statute had not been complied with. The court below, by its general finding for plaintiff on the warrants issued for the construction of the Cauthorn Ford bridge, necessarily found against the defendant on the issue of fraud. We have read and carefully considered all the evidence in the record bearing upon this issue, and are convinced that the finding of the trial court was right.

[6] The contention that the contracts should be declared void because the bond given by the contractor did not meet the requirements of the statute must be overruled. After performance by the contractor, the defendant cannot avoid payment by pleading, and proving mere irregularities in the execution of the contracts. Driver v. Moore, supra, and Chapman, etc., v. Wilson, supra.

The trial court did not err in sustaining the objection of plaintiff to the evidence offered to impeach the testimony of the witness Harris, especially in view of the evident purpose for which the evidence was offered, namely, to reflect upon the integrity of the county judge. For that purpose the testimony was clearly hearsay.

II. The evidence shows that the Cauthorn Ford Bridge was built in substantial compliance with the contract; that it was inspected and accepted by the commissioners charged with this duty under the statute; that the county court ordered the issuance and delivery of the warrants stipulated to be paid for the construction of the bridge. Clearly, the judgment for plaintiff upon these warrants was right.

[7] There is evidence in the record tending to prove that the Builders' Company did not place the concrete pillars for the Murphy's Ford bridge as deep as the contract called for, and that as a result of this

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defect the bridge was washed away the following spring. Be that as it may, the proof showed that the bridge was inspected and accepted by the commissioners charged with these duties under the statute, and that pursuant to the report of the commissioners the county court ordered the issuance and delivery of the warrants stipulated to be given for the construction of the bridge. The statute committed to the commissioners appointed by the quorum court the duty of seeing that the bridge was built according to contract, and, there being no question of fraud involved, courts are powerless to relieve the county from loss occasioned through the mistakes of judgment or want of care of its officers. We are of opinion plaintiff was entitled to recover on the warrants issued for the construction of the Murphy's Ford bridge.

[8] The Deep Ford bridge was not built at all. The steel for it was unloaded at the railroad station, and the Builders' Company, as it had the right to do under the contract, demanded and received 75 per cent. of the warrants stipulated as the price of the bridge. One of the commissioners for the Deep Ford bridge testified that Mr. Tate, the manager of the Builders' Company, told him that:

"We would have to appropriate some more money. He said security had gone down and labor had gone up.

He said he could not afford to built it."

Afterwards the company surrendered its charter, and in January, 1920, it ceased to exist. The facts show conclusively that the Builders' Company abandoned and, so far as it was possible for it to do so, rescinded the contract for the Deep Ford bridge. The county acquiesced. The Builders' Company (and plaintiff stands in its shoes) cannot repudiate the terms of the contract and refuse to perform its part of it, and at the same time claim or retain the benefits derived from the contract. Brady v. Oliver, 125 Tenn. 595, 147 S. W. 1135, 41 L. R. A. (N. S.) 60, Ann. Cas. 1913C, 376.

When the Builders' Company refused to construct the Deep Ford bridge, and later disincorporated, the contract being executory in its nature, the county had a right to consider the contract as ended, and to demand what was justly due it under these conditions. Lovell v. St. Louis Mutual Life Ins. Co., 111 U. S. 264, 4 Sup. Ct. 390, 28 L. Ed. 423; Roehm v. Horst, 178 U. S. 1, 20 Sup. Ct. 780, 44 L. Ed. 953. The county was clearly right in resisting payment of the warrants issued and delivered for the construction of the Deep Ford bridge, and it would have been entitled to a decree, had it asked for it, directing the surrender and cancellation of these warrants.

The judgment of the court below, dismissing the suit as to the warrants issued for the construction of Murphy's Ford bridge and vesting title in the wreckage of the bridge in plaintiff, is reversed, and the court is directed to enter judgment on said warrants for plaintiff. In all other respects the judgment is affirmed. Costs to Madison Bond Company. KENYON, Circuit Judge (dissenting). I am unable to concur in

, the foregoing opinion. In my judgment, the warrants issued for the construction of the Murphy's Ford bridge were not legal, and the judgment of the trial court as to them was, I believe, correct.

(289 F.)

PECK V, STAFFORD FLOUR MILLS CO.

(Circuit Court of Appeals, Eighth Circuit. April 13, 1923.)

No. 6165. 1. Contracts en 10(1)-Option to cancel, given one party, to render contract

unilateral, must be independent of any action by the other party.

An option of one party to cancel a contract, which will render the contract invalid for want of mutuality, must be an option dependent on the will of that party alone, and not dependent on action or inaction by

the other party. 2. Contracts en 10(4)-Contract held not void for lack of mutuality.

A contract for sale of merchandise held not void for lack of mutuality because of a provision giving the seller the option to cancel if any past-due

bill against the buyer should remain unpaid. 3. Contracts fm 10(4)—Provisions excusing performance in case of emergencies do not destroy mutuality of contract.

Stipulations in a contract of sale excusing performance in case of emer

gencies do not destroy its mutuality. 4. Contracts 238(2)-Written contract, though otherwise provided therein, may be changed by oral agreement.

) A written contract may be changed by a later oral agreement, even though it provides that no change or modification may be made, ex

cept in writing signed by the parties. 5. Evidence Ow596(3)–Of oral agreement changing written contract must be clear and convincing.

Evidence of an oral agreement to change or abandon a written contract

must be clear and convincing. 6. Trial On 143—Court should direct verdict, where evidence would not sustain

verdict for other party.

It is the rule of the federal courts that a verdict should be directed where the evidence, though conflicting, is of so conclusive a character that the court, in the exercise of a sound judicial discretion, would set aside a verdict in opposition to it. In Error to the District Court of the United States for the Western District of Arkansas; Frank A. Youmans, Judge.

Action at law by the Stafford Flour Mills Company against Ike Peck. Judgment for plaintiff, and defendant brings error. Affirmed.

Jeptha H. Evans and Charles I. Evans, both of Booneville, Ark., for plaintiff in error.

Ray Campbell, of Wichita, Kan. (J. Graham Campbell, of Wichita, Kan., on the brief), for defendant in error.

Before KENYON, Circuit Judge, and BOOTH and JOHNSON, District Judges.

BOOTH, District Judge. This is an action brought by defendant in error (plaintiff below) to recover damages for breach of contract. Plaintiff claimed that it had sold flour to defendant, and that he had refused to give instructions and specifications for shipment of the same, as agreed in the contract. The defense originally set up in the answer was that the contract had been canceled by mutual agreement. On the trial, defendant was allowed by the court to amend the answer by

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

setting up as an additional defense that the contract was unilateral. At the close of the evidence the court instructed the jury to return a verdict for plaintiff for the amount demanded in the complaint. There are 23 assignments of error, but those necessary to be considered may be summarized into the following:

(1) That the court erred in not holding that the contract was void for want of mutuality.

(2) That the court erred in directing a verdict for plaintiff for the amount demanded in the complaint, or for any amount. The contract, so far as here material, provided :

“Date 8-12-20. “The Stafford Flour Mills Company, of Stafford, Kan., sell[s] and Peck's Economy Store buy[s] the following commodities, subject to the terms and conditions stated herein and printed on the back hereof, which terms and conditions are binding on both parties to this contract, and cannot be modified, except by written consent of both parties, and no verbal conditions, warrants, or modifications are valid:

Packages. Brand. Bbl. 1000 bbls. flour...

...98# Cotton Bar-None $11.50

“Terms and Conditions. "Time of shipment, 180 days. "Destination: Magazine, Ark. “This contract is subject to confirmation by the seller at

"The Stafford Flour Mills Company,

"By W. Brooks, Seller,

"Ike Peck, Buyer. "Confirmed by the Stafford Flour Mills Co., by G. W. Kendrick. “Date 8–16–20.

"The buyer shall furnish to the seller, not less than fourteen (14) days prior to the expiration of the contract period, such specifications and instructions as will permit the seller to ship.

“(1) The seller shall have the option to delay shipment or delivery of or cancel all or any portion of this contract at any time that there remains unpaid to the seller any past-due bill against the buyer, or at any time that the property and or assets of the buyer are in the legal process of liquidation.

Seller shall not be responsible for failure to ship according to the terms and conditions of this contract, where such failure is caused by any fires, strikes, labor difficulties, failure of carriers to furnish facilities, or other acts of carriers or other causes beyond the control of the seller: Provided that, when such failure does exist, the seller shall perform this contract within a reasonable time, in any event, not to exceed thirty (30) days from the termination of cause or conditions resulting in seller's inability to perform."

[1] The claim of want of mutuality is based upon the clauses numbered (1) and (2) above. As to (1), the argument of defendant runs something as follows: That the evidence shows that defendant was indebted to plaintiff on a former contract, when the present contract was made, and continued to be behind in his payments on the first contract during all the life of the second contract; that this fact made the cancellation of the second contract optional with plaintiff at any time; that the contract, being not binding upon plaintiff, was therefore not binding upon defendant—in other words, was void for want of mutuality.

[2] The argument is ingenious, but not persuasive. We pass by without comment, but without assent, the assumption that the phrase "any past-due bill” includes those due on other contracts than the one

"(2)

(289 F.) in hand. But an option of one party to cancel, which will render the contract invalid for lack of mutuality, must be an option dependent upon the will of that party only, and not dependent upon action or inaction by the other party. In the case at bar, however, the option of plaintiff to cancel was dependent upon the failure of defendant to keep up his payments. It would be a startling conclusion that defendant, under the clause above quoted, by breaching a former contract, could thereby render the present contract unilateral as to plaintiff, and therefore not binding on the defendant. The maxim a party may not take advantage of his own wrong prevents such a conclusion.

(3] The claim of lack of mutuality by reason of the clause (2) is also without merit. Stipulations in a contract excusing performance in case of emergencies do not destroy its mutuality. 13 Corpus Juris, 337; Klosterman v. United Elec. Co., 101 Md. 29, 60 Atl. 251; Marin Water Co. v. Town of Sausalito, 168 Cal. 587, 599, 143 Pac. 767. Furthermore, in the case at bar, the failure to perform in the contingencies mentioned was not excused entirely, but temporarily only.

14] The remaining question in the case is whether there was sufficient evidence to go to the jury on the defense of mutual abandonment of the contract. The contract was in writing. The cancellation relied on was an oral oņe; but it is well settled that a contract in writing may be varied by an oral agreement (Canal Co. v. Ray, 101 U. S. 572, 25 L. Ed. 792; Teal v. Bilby, 123 U. S. 572, 8 Sup. Ct. 239, 31 L. Ed. 263; 13 Corpus Juris, 593; 6 R. C. L. 922), even though the contract provides that no change or modification thereof can be made except in writing signed by the parties (13 Corpus Juris, 594, § 611, and cases cited). And it seems that in Arkansas a contract in writing as required by the statute of frauds may be canceled by oral agreement. Vogler v. Dyer, 149 Ark. 670, 234 S. W. 504.1

[5] But the evidence in all such cases must be clear and convincing as to the oral agreement. 6 R. C. L. 922; Ross v. Tabor, 53 Cal. App. 605, 200 Pac. 971. In the present case the evidence as to cancellation consisted mainly of the testimony of the defendant to the effect that on or about January 23, 1921, Mr. Barr, vice president of the plaintiff, came to defendant's place of business in Arkansas to make a collection; that a conversation took place in which defendant related the circumstances under which the contract had been entered into, and told Mr. Barr of the bad condition of the farmers, and how hard collections were, and finally that defendant said, “Mr. Barr, I want to know about that other proposition” (the 1,000-barrel booking), and that Mr. Barr replied, "Now, I will tell you, we will just drop that matter, but, Mr. Peck, if you buy any flour, buy Bar-None four," and that defendant said, "I promise you upon my word of honor as a man, I will sure buy it.”

Barr testified that he called on defendant on Sunday, January 23, 1921, and had a talk with the defendant about collections under a prior contract, and also about ordering out flour under the present contract, but that nothing whatever was said about canceling the contract. After

1 Reported in full in the Southwestern Reporter; reported as a memorandum decision without opinion in 149 Ark.

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