{ "id": 1383860, "name": "Western Grain Company v. Barron G. Collier, Inc.", "name_abbreviation": "Western Grain Co. v. Barron G. Collier, Inc.", "decision_date": "1924-03-03", "docket_number": "", "first_page": "369", "last_page": "372", "citations": [ { "type": "official", "cite": "163 Ark. 369" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "248 S. W. 918", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "9 Ark. 394", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727412 ], "opinion_index": -1, "case_paths": [ "/ark/9/0394-01" ] }, { "cite": "54 Ark. 344", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "70 S. W. 169", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "11 N. W. 343", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "178 N. W. 584", "category": "reporters:state_regional", "reporter": "N.W.", "weight": 2, "opinion_index": -1 }, { "cite": "98 Ark. 334", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1316054 ], "opinion_index": -1, "case_paths": [ "/ark/98/0334-01" ] }, { "cite": "105 Ark. 136", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1347108 ], "opinion_index": -1, "case_paths": [ "/ark/105/0136-01" ] }, { "cite": "120 Ark. 208", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "148 Ark. 74", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "89 Ark. 233", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "144 Ark. 278", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "88 Ark. 550", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1517126 ], "opinion_index": -1, "case_paths": [ "/ark/88/0550-01" ] }, { "cite": "82 Ark. 86", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1529088 ], "opinion_index": -1, "case_paths": [ "/ark/82/0086-01" ] }, { "cite": "114 Ark. 397", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "78 Ark. 366", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1497310 ], "opinion_index": -1, "case_paths": [ "/ark/78/0366-01" ] }, { "cite": "79 Ark. 484", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1495667 ], "opinion_index": -1, "case_paths": [ "/ark/79/0484-01" ] }, { "cite": "111 Ark. 598", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1540393 ], "opinion_index": -1, "case_paths": [ "/ark/111/0598-01" ] }, { "cite": "134 Ark. 430", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1573292 ], "opinion_index": -1, "case_paths": [ "/ark/134/0430-01" ] }, { "cite": "137 Ark. 397", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1568014 ], "opinion_index": -1, "case_paths": [ "/ark/137/0397-01" ] }, { "cite": "96 Ark. 78", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1542004 ], "opinion_index": -1, "case_paths": [ "/ark/96/0078-01" ] }, { "cite": "102 Ark. 246", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1354035 ], "opinion_index": -1, "case_paths": [ "/ark/102/0246-01" ] }, { "cite": "146 Minn. 279", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 8889673 ], "opinion_index": 0, "case_paths": [ "/minn/146/0279-01" ] }, { "cite": "218 S. W. 981", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 } ], "analysis": { "cardinality": 467, "char_count": 7484, "ocr_confidence": 0.493, "pagerank": { "raw": 9.887515551086852e-08, "percentile": 0.5351188428360109 }, "sha256": "4c6d286e808c588a71bd3720172cb3cbae43fdea2a07050ee3a554282ec14660", "simhash": "1:18b8e6692a489199", "word_count": 1316 }, "last_updated": "2023-07-14T18:29:01.358749+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Western Grain Company v. Barron G. Collier, Inc." ], "opinions": [ { "text": "Humphreys, J.\nAppellee brought this suit against appellant in the circuit court of Sebastian County, Port Smith District, to recover monthly rentals in the total sum of $10i8 alleged to be due for advertising space in the street-cars operated in Port Smith. The suit was based upon a contract which, in substance, provided that appellant should pay appellee $13.50 per month for sixty months for advertising space of 11x21 inches in size in said street-cars, with the understanding- that appellant could not assign or sublet the space, and that its failure to use same should be its loss.\nSeveral defenses were interposed to this suit by appellant. It is only necessary to set out one of them in order to determine the issue presented by this appeal, viz., that it was the duty of appellee to mitigate its damages by renting the space to another when appellant breached the contract.\nThe cause was submitted upon the pleadings and testimony, at the conclusion of which the court instructed a verdict in favor of appellee, over the objection and exception of appellant.\nThe facts are undisputed, and are, in substance, as follows: Appellee purchased the whole of the advertising space in the street-cars at Fort Smith for a certain period of time, and divided it into a number of spaces which it rented to parties desiring to advertise their business by inserting advertising cards therein. Appellant rented one of these spaces, and entered into a written contract with appellee for same, the terms and conditions of which have heretofore been sufficiently set out. The contract was dated July 19,1919. It was carried out by both parties until some time in the summer of 1921. Appellant then became dissatisfied, and tried to get appellee to release it from the contract and allow the First National Bank of Fort Smith to take the space at the rate it was paying, which the bank offered to do. Appellee refused to release it, for two reasons, one being that the rates had been raised since the execution of the contract, and the other that it had vacant space of its own to sell. On the third day of September, 1921, appellant refused to use the space or to pay for same. This suit was afterwards instituted for the unpaid rents due up to March 13, 1922.\nAppellant contends that the court erred in instructing a verdict against it, because the undisputed facts showed that it could have recouped its damages in full by renting the space to the First N\u00e1tional Bank. To uphold appellant\u2019s'contention would, in effect, eliminate provisions of the contract purposely drawn to cover appellee\u2019s damages in case of a breach thereof by appellant. The clauses referred to are as follows:\n\u201cNonuse of space from advertiser\u2019s act or omission \u25a0 is advertiser\u2019s loss.\u201d\n\u201cThe advertiser cannot assign or sublet any privileges under this contract. \u2019 \u2019\nThe construction of contracts quite similar to the contract in question and the measure, of damages for the breach thereof by the advertiser has been before the Appellate Court of Missouri and the Supreme Court of Minnesota in the cases of Barron G. Collier, Inc., v. Domino Macaroni Mfg. Co., 218 S. W. 981; Barron G. Collier, Inc., v. Kindy, 146 Minn. 279.\nIn the Missouri case the court said: \u201cThe defendant is in no position, when it is the one \u25a0 breaching the contract, to aslc that plaintiff should accept its breach and sell that which it had sold to the defendant in preference to other space owned by the plaintiff which had not been sold at all. And, again, the defendant could not ask that the space which it had refused to take should be sold at a lower price than plaintiff\u2019s regular price to other customers, for, while this might mitigate the defendant\u2019s loss, it would not g-o to make up what the plaintiff was losing, because it would be merely shifting its loss as to a given amount of space to its loss on another given amount of space.\u201d\nIn the Minnesota case the court said: \u201cWe must bear in mind that defendant comes into the case, not in the role of an injured party, but in the role of one who has injured plaintiff by a confessed breach of the contract, and, while plaintiff must nevertheless use such effort as it reasonably may to reduce the damages arising from defendant\u2019s wrong, we think plaintiff could not be reasonably asked to cut its rates for unsold space, with incidental disturbances of its business, in order to save defendant from the loss resulting from his own breach of contract.\u201d\nNo error appearing, the judgment is affirmed.", "type": "majority", "author": "Humphreys, J." } ], "attorneys": [ "Warner, Hardin \u00e9 Warner, for 'appellant.", "\u2022John H. Vaughan, and Geo. W. Dodd, for appellee." ], "corrections": "", "head_matter": "Western Grain Company v. Barron G. Collier, Inc.\nOpinion delivered March 3, 1924.\nDamages \u2014 duty to minimize. \u2014 Where a contract for the lease of advertising space in street-cars provided that nonuse thereof from the lessee\u2019s act or omission should be the lessee\u2019s loss, and that the lessee could not assign or sublet any privileges under the contract, the lessor was not bound to mitigate the damages from the lessee\u2019s breach of the contract by renting the space to another offering to take it at the same rate, where the rate had been raised since the contract was executed, and there was other vacant space to sell.\nAppeal from Sebastian Circuit Court, Fort Smith District; John Brizsolam, Judge;\naffirmed.\nWarner, Hardin \u00e9 Warner, for 'appellant.\n1.' It is true that appellant breached the contract, but the appellee, although it could have protected itself against any damage accruing therefrom, by consenting to the transfer of the contract to the First National Bank, refused to do so. Under these circumstances it was reversible error to direct the verdict for the plaintiff. 102 Ark. 246; 96 Ark. 78; 137 Ark. 397; 134 Ark. 430; 111 Ark. 598; 79 Ark. 484; 78 Ark. 366; 173 S. W. (Ark.) 833. For rule with reference to directing a verdict, see 114 Ark. 397. See also 82 Ark. 86; 88 Ark. 550; 144 Ark. 278; 89 Ark. 233. If there is any evidence tending to establish an issue in favor of a party, it is error to direct a verdict against him. 148 Ark. 74; 120 Ark. 208; 105 Ark. 136; 98 Ark. 334.\n2. Unlike the Eindy case (Minn.) 178 N. W. 584, relied on by appellee, there was in this case a definite, tangible offer to take over the defendant\u2019s contract. Aside from that distinction, however, the decision in that case is in direct conflict with the decisions of this court referred to above, and with the weight of authorities. 11 N. W. 343; 70 S. W. 169.\n\u2022John H. Vaughan, and Geo. W. Dodd, for appellee.\n1. It is clear from the language of the contract that the parties stipulated in regard to the amount recoverable for appellant\u2019s breach of the contract. It provided not only that appellant should pay $13.50 per month, payable at the end of each month, during the term of the contract, but also that \u201cnonuse of space, from advertiser\u2019s act or omission, is advertiser\u2019s loss. The advertiser cannot assign or sublet any privileges under this contract.\u201d Parties may agree in regard to the loss or damages recoverable upon the breach of the contract, and such agreement is enforceable the same as any other stipulation. 8 R. C. L., \u00a7\u00a7 110; 111 17 C. J. \u00a7 231; Id. 935, \u00a7 234; 54 Ark. 344; 17 C. J. 947, \u00a7 240. The rule contended for by appellant is not applicable in a case of this kind; it is particularly applicable to cases involving personal services. 8 R. C. L. 445, \u00a7 15; 9 Ark. 394.\n2. The Kindy case, 178 N. W. 584, and that of Barron G. Collier, Inc., v. Domino Macaroni Mfg. Co., 248 S. W. 918, are convincing as to the correctness of the judgment in this case." }, "file_name": "0369-01", "first_page_order": 411, "last_page_order": 414 }