Ellis & Co. v. Farrell

Hart, J.

(after stating the facts). It is first insisted by counsel for the defendants that the court erred in dismissing their set-off or counterclaim against Farrell. It will be remembered that the defendants alleged in their answer that Farrell had sold to Katz about five miles of steel rails at Arkansas City, and had failed to deliver them to Katz, to his damage in the sum of $5,000, and that Katz had assigned his claim against Farrell to them.

The court dismissed this part of the answer of the defendants, and it is insisted that this constituted error calling for a reversal of the judgment.

Counsel for the defendants contend that Katz had a right to assign his claim for damages to the defendants, and that they could use it as a set-off in the action against the claim of the plaintiff. Conceding this to be true, the action of the court in dismissing the answer in this respect was not prejudicial error.

Counsel for the defendants were allowed to introduce in evidence the contract they made with Katz. The contract is set out in our agreed statement of facts and need not be repeated here. It bears date of the 6th day of September, 1917. In it Ellis & Company, for the consideration of $2,194.74 sold and transferred to Katz six cars of steel rails, being the steel rails which are the subject-matter of this lawsuit. In the contract it was agreed that if the plaintiff, Farrell, should in the future assert and maintain any claim against T. J. Ellis and S. C. Ellis for said cars of steel rails, Katz would indemnify them for any money that they might have to pay Farrell. There is nothing whatever in the contract assigning to Ellis & Company the rights of Katz under an alleged contract between him and Farrell for the sale of certain steel rails at Arkansas City. Hence the action of the court in dismissing the part of the defendants’ answer referred to did not constitute prejudicial error.

Again, it is insisted that the court erred in not permitting a witness to testify about a contract between Farrell and Katz whereby Farrell sold to Katz the steel rails, which are the subject-matter of this lawsuit, for $38 per ton. Farrell denied that any such contract had been made and objected to parol evidence concerning the same on the ground that the contract itself was the best evidence. The plaintiff was correct. Such contract was not a collateral issue in the case. It was not claimed that it had been lost and it could not be proved by parol testimony without laying the proper foundation therefor. Lee Line Steamers v. Craig, 111 Ark. 550, and cases cited, and Home Ins. Co. v. North Little Rock Ice & Electric Co., 66 Ark. 538. If Ellis & Company wished to interpose as a defense to the action of Farrell against them that Farrell had sold the rails in question to Katz and that they had merely shipped the rails to Katz in accordance with the terms of this contract and the instructions of Farrell, they should have introduced the contract itself in evidence instead of trying to establish its contents by parol evidence. It will be noted that counsel for the defendants purported to read from the contract and was asking the witness if such contract had not been signed by Farrell and by Katz. The court property held that the contract itself was the best evidence of its contents. Even if they had offered the contract itself in evidence, we could not review the ruling of the circuit court because of the failure of the defendants to set out the rejected instrument in the bill of exceptions. Supreme Lodge Knights of Pythias v. Robbins, 70 Ark. 364.

It is also insisted that the court erred in not admitting in evidence two letters written by the attorney of Katz to Ellis & Company relative to the contention ot Katz with regard to the contract between himself and Farrell. There was no error in the court’s ruling in this respect. These letters were not -directed to Farrell and were not received or read by him. Therefore he could not in anywise be bound by their contents. The matters contained in them were hearsay, so far as regards the controversy between Farrell and Ellis & Company.

According to the testimony of the plaintiff, he bought from the defendants the steel rails in question, and the defendants subsequent^ sold and delivered them to Katz and collected the money therefor whereby the plaintiff suffered a loss of profits because he had.contracted to sell the rails to another party at an advanced price.

On the other hand, it was the contention of the defendants that they had entered into a written contract with Farrell for the sale of certain steel rails to him at a stipulated price. A part of the rails was delivered to Mclntire and to Katz by Ellis & Company under instructions from Farrell. The defendants retained the proportionate part of the purchase price due them for these rails and also the sum of $654, which was due Farrell as his profits in the transaction. Thus far the facts are undisputed. The defendants claim, however, that Farrell sold the remainder of the steel rails which they had sold him to Katz of St. Louis, and they had shipped these rails to Katz and accepted a draft for the purchase money from the agent and attorney of Katz-, as they were directed to do by Farrell, and that payment on this draft was refused by Katz without any fault on their part.

The respective theories of the parties to this lawsuit were submitted to the jury under proper instructions which we have considered and find to be correct. Therefore, we do not deem it necessary to set them ont and discuss them in detail.

Counsel for the defendants also complain that the court refused to give an instruction asked by them. We do not deem it necessary to set out this instruction. It was completely covered by the instructions given by the court.

Therefore the judgment will be affirmed.