{ "id": 1678950, "name": "VENTURI, INC. v. Wallace ADKISSON", "name_abbreviation": "Venturi, Inc. v. Adkisson", "decision_date": "1977-06-27", "docket_number": "77-66", "first_page": "855", "last_page": "859", "citations": [ { "type": "official", "cite": "261 Ark. 855" }, { "type": "parallel", "cite": "552 S.W.2d 643" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "226 Ark. 64", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717597 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/226/0064-01" ] }, { "cite": "176 S.W. 316", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "118 Ark. 316", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1562530 ], "opinion_index": 0, "case_paths": [ "/ark/118/0316-01" ] }, { "cite": "212 Ark. 838", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1470275 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/212/0838-01" ] }, { "cite": "216 Ark. 211", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1614257 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/216/0211-01" ] }, { "cite": "217 Ark. 457", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721194 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ark/217/0457-01" ] }, { "cite": "219 Ark. 916", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1609212 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ark/219/0916-01" ] }, { "cite": "169 S.W. 796", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "113 Ark. 556", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1537537 ], "opinion_index": 0, "case_paths": [ "/ark/113/0556-01" ] }, { "cite": "215 Ark. 172", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1464720 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/215/0172-01" ] }, { "cite": "168 S.W. 553", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "113 Ark. 325", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1537499 ], "opinion_index": 0, "case_paths": [ "/ark/113/0325-01" ] }, { "cite": "153 S.W. 833", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "106 Ark. 400", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1345625 ], "opinion_index": 0, "case_paths": [ "/ark/106/0400-01" ] }, { "cite": "63 S.W. 56", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "69 Ark. 313", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722424 ], "opinion_index": 0, "case_paths": [ "/ark/69/0313-01" ] }, { "cite": "152 S.W. 150", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "105 Ark. 518", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1347090 ], "opinion_index": 0, "case_paths": [ "/ark/105/0518-01" ] }, { "cite": "59 S.W. 2d 493", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "187 Ark. 270", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1432150 ], "opinion_index": 0, "case_paths": [ "/ark/187/0270-01" ] }, { "cite": "205 S.W. 655", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "135 Ark. 269", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1571532 ], "opinion_index": 0, "case_paths": [ "/ark/135/0269-01" ] }, { "cite": "268 S.W. 857", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "167 Ark. 478", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1376986 ], "opinion_index": 0, "case_paths": [ "/ark/167/0478-01" ] }, { "cite": "5 S.W. 2d 729", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "177 Ark. 60", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718562 ], "opinion_index": 0, "case_paths": [ "/ark/177/0060-01" ] }, { "cite": "255 S.W. 22", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "160 Ark. 496", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723671 ], "opinion_index": 0, "case_paths": [ "/ark/160/0496-01" ] } ], "analysis": { "cardinality": 478, "char_count": 6806, "ocr_confidence": 0.866, "pagerank": { "raw": 5.8351746461183854e-08, "percentile": 0.3626186314337245 }, "sha256": "c497a2cdbbff4b0e24258d9a92781e633ad011737f7cb3a1f090f77922893750", "simhash": "1:4f4ef5d40260450a", "word_count": 1142 }, "last_updated": "2023-07-14T16:40:25.982646+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "We agree. Harris, C.J., and Byrd ami Hickman, JJ." ], "parties": [ "VENTURI, INC. v. Wallace ADKISSON" ], "opinions": [ { "text": "John A. Fogleman, Justice.\nThis case involves the question whether evidence of well-established custom and usage was admissible in evidence in a case where the terms of an oral contract were in dispute. Appellant contended, and introduced evidence to show, that it contracted for appellee to excavate for a boot pit area for a rice dryer for Producers Rice Mill, Inc. at Wynne. According to the evidence introduced on behalf of appellant, defendant below, the contract called for payment at the rate of $2.50 per cubic yard. Appellee\u2019s evidence showed the agreement was that the compensation was to be paid at that rate on a \u201cloose yard basis.\u201d The difference is that under appellant\u2019s concept, the hole excavated would be measured and the compensation paid on the basis of the measured yardage. Under appellee\u2019s version one-third of this amount would be added to the yardage determined by this measurement to obtain the loose yardage.\nAppellant proffered evidence of a well-established and generally accepted custom and usage in the excavation and construction industry to pay for such excavation work on the basis of the measured yardage calculated from a cross-section of the excavation. Appellee was in the construction business off and on for eight years. Before entering into the contract, he consulted with an employee, who had been in the earth moving business for 50 years, 13 years of which were in the operation of his own business and 5 years in the employ of appellee. If there was a well-established general custom and usage in the business, appellee should certainly have been aware of it. See Connelly v. Parkes, 160 Ark. 496, 255 S.W. 22.\nOf course, evidence of custom and usage would not be admissible to vary, contradict or defeat the terms of the contract. Jackson County Gin Co. v. McQuistion, 177 Ark. 60, 5 S.W. 2d 729; Ballon v. Jones, 167 Ark. 478, 268 S.W. 857; Burton v. Wilson, 135 Ark. 269, 205 S.W. 655; National Lumber & Creosoting Co. v. Mullins, 187 Ark. 270, 59 S.W. 2d 493. If custom and usage is uniform, reasonable and well established, it may govern the terms of a contract and be considered as a part of the contract, unless contradictory to its express terms. Taylor v. Union Sawmill Co., 105 Ark. 518, 152 S.W. 150; McCarthy v. McArthur, 69 Ark. 313, 63 S.W. 56; Paepcke-Leicht Lumber Co. v. Talley, 106 Ark. 400, 153 S.W. 833; Davis v. Martin Stave Co., 113 Ark. 325, 168 S.W. 553; Jackson County Gin Co. v. McQuistion, supra. The evidence offered would have been admissible as an aid to interpretation of the contract and the measuring of its terms if the jury should find that the contract was upon the terms as appellant\u2019s witnesses expressed it, because that evidence was that the custom was of such widespread usage that it could be presumed that the contract was made with reference to it. Ben F. Levis, Inc. v. Collins, 215 Ark. 172, 219 S.W. 2d 762; Connelly v. Parkes, supra; McCarthy v. McArthur, supra; Davis v. Martin Stave Co., supra; Batton v. Jones, supra; Wilkes v. Stacy, 113 Ark. 556, 169 S.W. 796. See also, Sharpensteen v. Pearce, 219 Ark. 916, 245 S.W. 2d 385.\nBut the admissibility of this evidence in this case is not restricted to interpretation of the contract, if its terms were as appellant contends. The circuit judge ruled that it was inadmissible on the issue as to the terms of the contract. This was error. The evidence would not have been admissible if the issue was the existence or non-existence of a contract. Ft. Smith Refrigeration & Equipment Co. v. Ferguson, 217 Ark. 457, 230 S.W. 2d 943. Usage cannot make a contract where there is none. McCarthy v. McArthur, supra. But neither party contends that there was no contract. Instead, both maintain that there was a contract. The dispute is about its terms. The question is what the terms of the contract were on the matter of compensation to appellee. Where evidence on this subject is conflicting, evidence of custom and usage is admissible as bearing upon the probable truth of what was alleged on either side as having been the agreement of the parties. Shaver v. McKamey, 216 Ark. 211, 224 S.W. 2d 819; Ft. Smith Refrigeration & Equipment Co. v. Ferguson, supra. See also, Sharpensleen v. Pearce, supra.\nIn order that our holding be not mistakenly applied, we agree with the trial court that neither the custom and usage of appellant nor its practice under other contracts is admissible in this case, where there was no evidence that appellee had any knowledge of either when the transaction was entered into and it appears that there was no connection between any of the other transactions and that with appellee. Glidewell v. Arkhola Sand and Gravel Co., 212 Ark. 838, 208 S.W. 2d 4; Calhoun v. Ainsworth, 118 Ark. 316, 176 S.W. 316, LRA 1915 E 395; Forest Park Canning Co. v. Coler, 226 Ark. 64, 287 S.W. 2d 899.\nA great deal of appellant\u2019s argument rests upon various sections of the Uniform Commercial Code, Ark. Stat. Ann. \u00a7\u00a7 85-1-101 et seq (Add. 1961; Supp. 1975). There is nothing in the text of the code to indicate any intention that it apply to the transaction between these parties. Afiy lingering doubt about the matter may be dispelled by reference to the title of Act 185 of 1961 adopting the code. It reads:\nAn Act to be known as .the Uniform Commercial Code, Relating to Certain Commercial Transactions in or Regarding Personal Property and Contracts and Other Documents Concerning Them, Including Sales, Commercial Paper, Bank Deposits and Collections, Letters of Credit, Bulk Transfers, Warehouse Receipts, Bills of Lading, Other Documents of Title, Investment Securities, and Secured Transactions, Including Certain Sales of Accounts, Chattel Paper, and Contract Rights: Providing for Public Notice to Third Parties in Certain Circumstances: Regulating Procedure, Evidence and Damages in Certain Court Actions Involving Such Transactions, Contracts or Documents: to Make Uniform the Law With Respect Thereto: and Repealing Inconsistent Legislation.\nThis contract does not fall into any category enumerated. Thus, provisions of this code do not govern admissibility of evidence in this case.\nThe trial court was not in error in denying appellant\u2019s motion for a directed verdict. The instructions requested by appellant on the subject of usage of trade were erroneously refused for the same reason we find error in the exclusion of the evidence offered by appellant on the subject, even though its requested instruction no. 1 might have been more artfully drawn.\nThe judgment is reversed and the cause remanded.\nWe agree. Harris, C.J., and Byrd ami Hickman, JJ.", "type": "majority", "author": "John A. Fogleman, Justice." } ], "attorneys": [ "Shaver, Shaver & Smith, by: Tom B. Smith, for appellant.", "DeLoss McKnight, for appellee." ], "corrections": "", "head_matter": "VENTURI, INC. v. Wallace ADKISSON\n77-66\n552 S.W. 2d 643\nOpinion delivered June 27, 1977\n(Division II)\nShaver, Shaver & Smith, by: Tom B. Smith, for appellant.\nDeLoss McKnight, for appellee." }, "file_name": "0855-01", "first_page_order": 895, "last_page_order": 899 }