430 BAKER ICE MACHINE . COMPANY V. POWELL. [169 _BAKER ICE MACHINE UOMPANY V. YOWELL. Opinion delivered July. 13, 1925. 1. PRINCIPAL AND AGENT—EVIDENCE OF RELATION.—The relation of principal and agent cannot be shown by the declarations of the agent. 2. PRINCIPAL AND AGENT—DEALINGS ' BETWEEN—RIGHTS OF THIRD PArcrY.—Even if the evidence established that a construction corn-pany was the agent of appellant, yet where a sale of goods was made *by appellant directly to iuch construction company, and ' by mistake certain articles were included in the shipment which the construction company had not,bought, appellee . had no right to retain such goods upon the ground that , the construction corn-paniT was indebted to it by reason of a breach of contract: Appeal from Washington Circuit Court ; W. A. Dick-son, Judge ; reversed.
ARK.] BAKER ICE MACHINE COMPANY V. POWELL. 431 STATEMENT BY THE COURT. Appellant brought this suit in the circuit court against appellees to recover possession of certain articles of personal property of the alleged value of $1,471.10. Appellees defended the suit on the ground that appellant had no. title to the property sought to be recovered. On the 20th day of August, 1920, the Baker Ice Machine Company, Inc., entered into a contract in writing with the Moody ' Engineering , Company, also a corporation, wherein it is recited that the latter is desirous of acting as.the selling agent in the State of Arkansas-for.the of ice making and refrigerating equipment manufactured and sold bY the former: The Contract provided the terms upon which the material was to be sold by the Baker Ice Machine Company to the Moody..Engineering Company. It also provided that the manufacturer would assist in advertising its goods in Arkansas, and the purchaser agreed to sell the equipment manufactured to the exclusion of ,sirnilar equipment , made by other manufacturers. Subsequently the Moody Engineering 'Company en, tered into a written contract with the Arkansas Cold Storage & Ice .Company, at Fayetteville, Ark., to install certain equipment in its ice manufacturing plant. On the 20th day of November, 1922, the Moody Engineering Company wrote to the Baker Ice Machine Company, .at Omaha, Neb., a letter as follows : . "Gentlemen: Please enter this order for shipment in accordance with instructions given below. It is given wiih the understanding that ,shipment can be made. Kindly acknowledge receipt of same and give shipping date. "Necessary coils with headers and fittings for 340- ean outfit to fit tank in accordance with dimension print attached. Arrange to use approximately 6,300' . of 114" pipe. Make coils in continuous bends 'with two sets of headers, one at each end of tank. Similar tank here in People's Ice and Fuel Company. "With coil stands. See letter January 7, 1923.
432 :BAKER ICE MACHINE COMPANY V. POWELL. p169 "Remarks : Ship to us at Fayetteville, Arkansas." The material was ordered by the Moody Engineering Company, to be used in filling its contract with the Ar-kansas , Cold Storage & Ice Company. When the Material arrived at Fayetteville, it was unloaded by the Arkan-sas Cold Storage & Ice Company, preparatory-to being used in installing the equipment in its ice factory.' Subsequently the Baker Ice Machine Company wrote to the Moody Engineering Company that it had included by mistake in the car of material about 6000 feet of pipe,in the shape of return :bends, which was not intended to be done. The letter requested the Moody Engineering Company to return the material which had been shipped by mistake, and gave an exact description of the material to be shipped back to it. The Moody Engineering C , om-pany atteMpted to ship this extra material back to the Baker Ice Machine Company, but was prevented by the Arkansas Cold Storage & Ice Company from doing so. When the shipment was received, the Arkansas Cold Storage & Ice Company advanced to the Moody Engineering' Company the money \\in which to pay the freight and this included the material which is claimed by appellant was shipped by mistake. In the contract between the Arkansas Cold Storage & Ice Company and the Moody: Engineering Company, the latter describes itself as the factory representative of the Baker Ice Machine 'Company. During the Progress of installing the equipment . for the Arkansas' gold Storage & Ice Company, a payment of $3,000 was made tothe Moody Engineering COmpany, which was described in the check used in making the payment as the factory representative of the Baker Ice Machine Company. Evidence was also introduced by appellees tending to show that the Moody Engineering Company did not coMply with' it§ contract with the Arkansas Cold Storage & Ice Company in installing said equipment, and that the latter was damaged thereby in an amount greater than the value of the equipment sought to be recovered in this action. Other evidence will be referred to in the opinion.
ARK.] BAKER ICE MACHINE COMPANY V. POWELL. 433 The-jury returned a verdict in favor of appellees, . and from the judgment rendered appellant has duly ,prosecuted an appeal to this court. • Rose, Hemingway, Cantrell & LoughbOrough, for appellant. Walker & Walker, for appellee. HAR . T, J., (after stating the facts): The sole ground relied upon for a reversal of the' judgment is that the evidence •is not legally sufficient to support the verdict, arid in this contention we think counsel for appellant are correct. ' • We. are of 'the opinion that there is no evidence in the record legally sufficient to show that the Moody Engineering 'Company was the selling agent of appellant at the time the transaction in questiOn was had, and, even if the Moody Engineering Company had been the selling agent of appellant, that would not help the case of appel-lees any, because • the sale of the articles sought to be reCovered by appellant was made directly to the Moody Engineering Company. In th'e contract between the Moody Engineering Company and the Arkansas Cold Storage & Ice' 'Company the former designates itself •as the factory representative of the Baker Ice Machine Company; but this representation did not affect appellant. It is well settled in this State that the relation of principal and agent cannot be shown by the declarations of the agent. Moore' v. Ziba Bennett '& Co., 147 Ark. 216. , The de g ignation by the Moody Engineering Corapay that it was the factory representative of the Baker Ice Machine Company in its written contract with the Arkan-sas Cold, Storage & Ice Company could amount to no more than . a declaration of its agency for the Baker Ice Machine Company. The 'latter could not be affected by this declaration beCarise it NA-T as not' a party to the Contract, and it is not shown that it had any knowledge that such representation had been made. • For like reason; the writing in the check . from the Arkansas Cold Storage & Ice Company to the Moody En-
434 .BAKER ICE MACHINE COMPANY V. • POWELL. [169 gineering Company that the latter was the 'factory repre-g entative of the Baker Ice Machine . CoMpany amounted to no more than a declaration of its agency.. It is not ..shown that the . Baker Ice,Machine ;Company ever saw the check or knew that any representation of agency had been written in it. . Even if it should be conceded that the proof was sufficient to establish such agency, this would not help the case of _appellees. The ,reason is that . the sale of the material, in question -was made directly by the Baker Ice Machine Company to the Moody Engineerin g Company, and the former had as much right to sell to its agent as.it did:to any third person. • • . The Arkansas Cold . Storage & Ice Company was'not ! party to the contract; and the fact that the-material pur-, chased by the:Moody Engineering 'Company was to be _used in:its ice factory did not in any sense make the Ar-. kansas Cold Storage & Ice Company a Tarty to the contract or give itany rights thereunder. The order for the .material or equipment was in writing signed bY the 'Moody Engineering Company •and was sent . by 'it directly to• the Baker Ice* Machine Company. The 'Arkansas Cold Storage &- Ice Company was not referred to in the contract, and the fact that the equipment pur-.chased was to be installed in its factory did, not give it , any rights under the contract.. , • . It.is true that the car 'of material 'was 'unloaded at .the plant of the 'Arkansas 'Cold Storage &Ice ,Company, .and that thelreight was paid by the latter 'companY. The payment of -the freight, however, was merely 'an advance - of money by.the Arkansas 'Cold Storage & Ice Company to the Moody Engineering Company under its contract for installing the equipment in 'its plant . Therefore, tlie advancement of the money with which fo . pay the . freight did not give the Arkansas Gold Storage & Ice Company any rights under the contract. The ear of material was. consigned directly to the Moody Engineering . Company at -1 a.yetteville, Ark., and the Arkansas Cold Storage & Ice
ARK.] BAKER ICE MACHINE COMPANY V. POWELL. 435 Company *as not considered in .the matter at .all by the Baker Ice Machine Company. Under these circumstances the fact that the material wa g unloaded at .the 'plant of the Arkansas Cold Storage & Ice Company did not'• giv,e it. any rights in the premises. The undisputed evidence shows that the material in question was included in the shipment by the mistake of the shipPing clerk of appellant. This fact. is,•testified to, not only by the' agents of appellant, but . by the president of the Moody Engineering Company.. It is true that the material was suitable-for use in the plant of the Arkansas Cold Storage & Ic ComPany,' kit it' Was, not necessary. The material was laid out for a job very lar to the one for the Arkansas Cold Storage & Ice Company, but it was not needed for that job and was in addition to the material which was ordered for that job .by the Moody Engineering 'Company. While it' was suitable for the job, it wa g practically a duplication of that which was ordered and . used on the job and was not needed ,or:Used at all. It was included in the shipment 'made by appellant to the Moody Engineering Company by mistake, and the Arkansas .Cold Storage & Ice Company had no right to prevent the Moody Engineering Company from returning the articles because that company had failed to comply with its contract; or for other. 'reason. The undisputed evidence shows that the 'material in question was shipped by appellant by IniStale -to 'the Moody Engineering COmpany, arid the Arkansas Cold Storaze & Ice . CompanY had no ri gtht at . all .6 prevent its return or to keep it. • . The result of our views is that the court , erred ,in, not directing a verdict for appellant under:the , evi-_ dence . introduced, and for that 'error the .judgitient be : reversed, and the cause 'Will be remanded *fOr''a n6.1,1'7 trial. , t .;
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