Leidigh & Havens Lumber Co. v. Clark , 78 Ark. 539 ( 1906 )

McCulloch, J.,

(after stating the facts.) 1. Learned counsel • for appellant ask for reversal mainly upon the ground that the evidence is insufficient to sustain the verdict. Their position, briefly stated, is that the appointment, in compliance with the statutes of the State, by a foreign corporation doing business in the State of an agent upon whom process may be served contemplates the performance of no service or labor except the purely formal one of receiving and forwarding copies of process delivered to the agent; and, as the statute fixes no fee of compensation therefor, none can be claimed.

This contention, however, ignores other facts alleged in the complaint as grounds for recovery. Appellee does not base his claim alone upon the performance of the perfunctory duties of agent of defendant for receipt of process. He alleged in his complaint, and introduced testimony tending to prove, that, at the time of his appointment as agent for that purpose, he was then local manager of defendant’s mill at Mena, that his duties were then enlarged so as to include the general management of all the defendant’s extensive business in adjoining counties, and that he then demanded, and the defendant agreed to pay him, an additional salary of $1,500 for the performance of such additional services. He testified that he performed the additional servcies in compliance with this new contract. It is true that these things were disputed by appellant. Its contention in the pleadings and before the jury was that appellee was already employed on a salary of $1,200 per annum as general manager; that the appointment as State agent to receive service of process involved no new duties of a substantial character, and that it made no agreement to pay him an additional salary. But the jury determined these disputed- questions of fact upon legally sufficient evidence against appellant, and, under the well-settled practice of this court, we are concluded by the findings of the jury.

The employment of appellee as agent to receive service of process, and with superadded duties as general manager of appellant’s business in the State, at a stated salary in addition to the amount he was already receiving, was a matter about which the parties undoubtedly could contract, and the validity and binding force of their contract in this respect must be recognized by the court. It is entirely erroneous to say,, as contended by learned counsel, that, because the statute requiring the appointment by a foreign corporation of an agent to receive services of process fixes no fee or compensation, the parties may not agree upon the payment of a certain compensation, and may not also agree upon the performance of other duties than that of receiving and forwarding copies of served process.

The evidence upon this, as well as all the issues in the case, was sufficient to sustain the findings of the jury, and the verdict will not be disturbed on that account.

2. Appellee testified that on November 10, 1902, he wrote a letter to appellant, the substance of which is set forth in the complaint, notifying appellant that he would demand a salary of $1,500 per annum for his services as State agent, and that he received a reply in due course of mail to the effect that Mr. Banks, the treasurer of the company, would visit Mena in a short time and take the matter up personally with appellee. He testified that a press copy of his said letter to appellant was kept, and the same was read in evidence over the objection of appellant. Error of the court in admitting the letter in evidence is assigned here on the ground that appellant should have first been notified to produce the original letter before a copy could be introduced in evidence but the objection below was placed on entirely different grounds. ¡

Appellee was clearly entitled to make proof of the letter as a preliminary step in the alleged negotiation for increase of his salary. Conceding that appellant was entitled to notice, so that the original could be produced, no prejudice resulted from the failure to give notice, as the officers of appellant company testified that no such letter was ever received, and that they had, made search for the same on the files in the office and could not find it. The notice could, therefore, have availed nothing if it had been given.

The contract is not, according to appellee’s contention, dependent upon this letter. Appellee testified that the agreement for increased sala^ was made with Mr. Banks, appellant’s treasurer, on the occasion of his visit to Mena in January, 1903. Banks denied having made the agreement, and denied his authority to make such an agreement with appellee. But there was evidence, sufficient to go to the jury, of his authority to make the contract, as well as the fact that he did make it.

In the trial below the only issues submitted to the jury were whether Banks entered into the alleged contract with appellee for enlargement of his duties and increase of his salary, and whether he had authority to make such a contract for appellant. Both sides accepted these as the only two issues in the case, and both asked instructions thereon which were given by the court. The instructions fairly submitted the issues to the jury, and a verdict was returned upon- conflicting and legally sufficient evidence.

Judgment affirmed.