{
  "id": 1724180,
  "name": "International Minerals & Chemical Corporation v. Don S. Caplinger",
  "name_abbreviation": "International Minerals & Chemical Corp. v. Caplinger",
  "decision_date": "1967-02-20",
  "docket_number": "5-4124",
  "first_page": "1055",
  "last_page": "1058",
  "citations": [
    {
      "type": "official",
      "cite": "241 Ark. 1055"
    },
    {
      "type": "parallel",
      "cite": "411 S.W.2d 526"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "46 Ark. 163",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1890457
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ark/46/0163-01"
      ]
    },
    {
      "cite": "196 Ark. 1046",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1462362
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/ark/196/1046-01"
      ]
    },
    {
      "cite": "232 Ark. 359",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1694128
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/ark/232/0359-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 383,
    "char_count": 6034,
    "ocr_confidence": 0.508,
    "pagerank": {
      "raw": 7.190389880293561e-08,
      "percentile": 0.430240913659445
    },
    "sha256": "a905bf696145c603e077526c3f86a807c29e528e0c2cddeeb1ff994de7bbc9a5",
    "simhash": "1:273af810e93e0c10",
    "word_count": 1022
  },
  "last_updated": "2023-07-14T14:36:03.113111+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "International Minerals & Chemical Corporation v. Don S. Caplinger"
    ],
    "opinions": [
      {
        "text": "Paul Ward, Justice.\nThis is a suit to collect for goods sold \u2014 but under unusual circumstances which will be explained. The facts presently set out are not controverted.\n(a) International Minerals and Chemical Corporation (appellant)- \u2014 a foreign corporation authorized to do business in Arkansas. \u2014 -is engaged in selling fertilizer to its agents who are retailers, (b) In this case Walden-burg Gin and Supply Company was its agent to retail fertilizer in Poinsett County, (c) Don S. Caplinger (appellee) was. the sole owner of said company, (d) On February 17, 1960 appellant and appellee executed an \u201cAgent\u2019s Contract\u201d which is quite lengthy and deals with many items not pertinent here. In material part it provides that appellee guaranteed to pay for all fertilizer purchased for resale, (e) On June 25,1964 when appellee sold his business (including all assets) to Clinton E. Bowling, he owed appellant a balance of $18,810.65. (f) On the date last mentioned and when appellee refused to pay said balance Bowling executed three notes to appellant totaling the amount due \u2014 the notes were due December 1, 1964. (g) Bowling paid off two notes, but appellant was unable (after many efforts.) to collect the third note in the amount of $6,810.65.\nOn July 23, 1965 appellant filed this suit against appellee to collect \u201csaid account\u201d. The essence of appellee\u2019s answer which is. pertinent here was: (a) A few hours before Bowling executed the notes appellee notified appellant that he had sold out to Bowling \u201cincluding its accounts both payable and receivable\u201d, (b) With that knowledge appellant \u2018 \u2018 accepted the note ... and in doing so extended the due date without notice .... \u201d (c) This indulgence ivithout notice operated to release him from further liability.\nThe matter proceeded to trial before a jury, and, after both sides, rested, the trial judge instructed a verdict in favor of appellee on the ground that, as a matter of law, appellee \u201cwas not responsible to plaintiff upon the account sued on because of indulgence granted by plaintiff to one Clinton BoAvling subsequent to December 1, 1964\u201d.\nIt is not disputed that: (a) Appellee purchased fertilizer from appellant; (b) He owed appellant a balance of $18,810.65 on or about June 25, 1964; (c) $12,000 has been paid; (d) A balance of $6,810.65 is unpaid, and; (e) Appellee guaranteed the payment of said amount.\nTo avoid liability for the above amount, appellee contends: One. The time of payment was extended without his knowledge. Two. There was a \u201cnovation\u201d of the written \u201cAgency Contract\u201d.\nOne. It is here contended by appellee that he was relieved of all obligation to pay appellant because he (appellant) gave Bowling extra time in which to pay. We are unable to agree with this contention.\nIn the first place appellant sued on the overdue \u201caccount\u201d which appellee acknowledged but refused to pay, and did not sue on the note. Not only so, but we find nothing in the record to show appellant ever extended the time for Bowling to pay the note or the account. What appellant did do was to make repeated efforts to have Bowling pay, and when this failed it filed this suit against appellee.\nThis action by appellant merely tended to protect appellee from having to pay the balance due on the account.\nTwo. Appellee\u2019s further contention is that when Bowling executed his note to appellant that constituted a \u201cnovation\u201d and, thereby, released him from all obligation to pay the past due account. This contention is not in accord with our decisions under the facts in this case.\nThis issue was considered in the case of Simmons National Bank v. Dalton, 232 Ark. 359, 337 S. W. 2d 667. In that case, in holding Dalton was not released from liability on the ground of a novation, we used language applicable to this case. There the Bank made efforts to collect from Thompson who was secondarily liable, and we said: \u201c. . . what the Bank did amounted to nothing more than an effort to accommodate Dalton in its efforts to have Thompson pay Dalton\u2019s debt.\u201d We said:\n\u201cOur decisions and the text-writers appear to he uniform in holding that it is necessary to show an intent on the part of the creditor to release an old debtor and substitute therefor a new debtor. In Home Life Insurance Company v. Arnold, 196 Ark. 1046, 120 S.W. 2d 1012, this Court, in dealing with this same question, said: \u2018. . . the effect of the novation is the intention of the parties.\u2019 (Emphasis supplied.) Likewise, at Pages 266 and 267 of Volume 39 Am. Jur., it is stated, among other things, that: \u2018 In order to effect a novation there must be a clear and definite intention on the part of all concerned that such is the purpose of the agreement.\u2019 (Emphasis supplied.) \u201d\nWe also said: \u201cIn a case of this kind the burden was on Dalton to show that he has been released by appellant Bank,\u201d citing Brewer & Son v. Winston., 46 Ark. 163.\n.In our opinion there is no testimony in the record that shows \u201ca clear and definite intention\u201d of the parties to this action to release appellee from liability. To the contrary, William Little, an agent of appellant, stated that on June 26, 1964 he called on appellee to settle the account he owed appellant; that he learned appellee had sold to Bowling; that appellee told him \u201cit would be all right to have Mr. Bowling sign the notes\u201d; he then told appellee that \u201cif anything happened and the notes, were not paid, we would look to him for payment on his personal guarantee.\u201d\nAppellee testified, on cross-examination, that when Mr. Little called him to settle the account he refused to execute any notes or be responsible any further, and that Bowling had no authority to bind him.\nClearly a fact question was made for the jury on this, point, and the court erred in directing a verdict for appellee.\nReversed.",
        "type": "majority",
        "author": "Paul Ward, Justice."
      }
    ],
    "attorneys": [
      "Barrett, Wheatley, Smith & Beacon; By: Joe C. Boone, for appellant.",
      "Greer & Collier and Ward & Mooney, for appellee."
    ],
    "corrections": "",
    "head_matter": "International Minerals & Chemical Corporation v. Don S. Caplinger\n5-4124\n411 S. W. 2d 526\nOpinion delivered February 20, 1967\nBarrett, Wheatley, Smith & Beacon; By: Joe C. Boone, for appellant.\nGreer & Collier and Ward & Mooney, for appellee."
  },
  "file_name": "1055-01",
  "first_page_order": 1077,
  "last_page_order": 1080
}