Tomlinson Chair Manufacturing Co. v. Jop-pa Mattress Co. , 122 Ark. 566 ( 1916 )

Hart, J.,

(after stating the facts). Counsel for appellant asked tlie court to instruct the jury that appellee was not entitled to recover because its claim against appellant was not assignable under our statutes and Porter the assignor had not been made a party to the action.

The case originated before a justice of the peace and no objection was made in that court that Porter had not been made a party to the action. When the case reached the circuit court no objection was made that he was not a party until the court began to instruct the jury.

Section 6093 of Hirby’s Digest provides that the defendant may demur to the complaint where it appears on its face that there is a defect of parties.

Section 6096 provides that when any of the matters enumerated in 6093 do not appear upon the face of the complaint, the objection may be taken by answer. It further provides thaf if no such objection is taken either by demurrer or answer, the defendant shall be deemed to have waived the same.

(1) Appellant failed to raise the objection of the defect of parties in the language pointed out by these statutes and has therefore waived the same. Jordan v. Muse, 88 Ark. 587; Spear Mining Co. v. Shinn, 93 Ark. 346; Less v. English, 75 Ark. 288; St. L. S. W. Ry. Co. v. Vanderberg, 91 Ark. 252. It follows the court did not err in refusing to instruct the jury as requested by counsel for appellant.

According to the testimony of Porter, he was not an employee of appellant. He negotiated sales between appellant and merchants and received a compensation by way of commission. He dealt with several wholesale firms in this way and gave his orders to the one he deemed proper. Therefore under his testimony he was a broker and not a salesman of appellant. It could make no difference whether or not he employed snb-agents to solicit business for him.

According to the testimony of the witnesses for appellant when it shipped out a car load of furniture, the consignee was entitled to a discount of 10 per cent. The witness stated that the order in question when received by appellant called for a discount of 10 per cent, to the consignee. The Little Rock Storage & Sales Company was the consignee and the goods were billed to it at 10 per cent, discount.

Porter testified that it had been the custom of appellant to allow him 5 per cent, discount when he sent the order in that way; that it had been the custom to ship the goods out as directed by Em. He testified that he sent in the order for 5 per cent, discount to the Little Rock Storage & Sales Company and that according to custom, appellant knew that he was to receive the remaining 5 per cent.

This disputed question of fact was submitted to the jury under proper instructions. As we have already seen, it is undisputed that appellee owed appellant $30 for a bill of goods and that 5 per cent, discount on the sale in question amounted to $28.45.

The jury returned .a verdict for appellant for $1.55. It follows from what we have said that there was sufficient" testimony to support the verdict and the judgment will be affirmed.