{
  "id": 1756105,
  "name": "Edward J. KERN v. SELLS ENTERPRISES, INC., A Georgia Corporation",
  "name_abbreviation": "Kern v. Sells Enterprises, Inc.",
  "decision_date": "1981-02-16",
  "docket_number": "80-198",
  "first_page": "904",
  "last_page": "907",
  "citations": [
    {
      "type": "official",
      "cite": "271 Ark. 904"
    },
    {
      "type": "parallel",
      "cite": "612 S.W.2d 94"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 336,
    "char_count": 5226,
    "ocr_confidence": 0.728,
    "sha256": "9f02c6f6005c8fcc0adc718e537e4341ca1939ddcee6aa34262213c5efb9e62c",
    "simhash": "1:ccad1d7a2caa0cfd",
    "word_count": 802
  },
  "last_updated": "2023-07-14T21:22:30.070289+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Edward J. KERN v. SELLS ENTERPRISES, INC., A Georgia Corporation"
    ],
    "opinions": [
      {
        "text": "Richard B. Adkisson, Chief Justice.\nAppellant, Edward Kern, filed suit in the chancery court of Sebastian County alleging that he was induced to enter into a distributorship agreement by the untrue statements and misrepresentations of the appellee. Appellant sought common law equitable rescission, statutory rescission under the Arkansas Securities Act, Ark. Stat. Ann. \u00a7\u00a7 67-1235 to -1262 (Repl. 1980), or damages under the Arkansas Franchise Practices Act, Ark. Stat. Ann. \u00a7\u00a7 70-807 to -818 (Repl. 1979).\nThis appeal is from the chancellor\u2019s order finding that there was no untrue statements or misrepresentations and that appellant was entitled to no relief. These findings of fact by the trial court shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Rule 52, Ark. Rules Civ. Proc., Vol. 3A, Ark. Stat. Ann. (Repl. 1979).\nThere is a common factual thread of proof necessary to support each of appellant\u2019s three stated grounds for relief \u2014 whether appellee\u2019s representative, Higgins, told appellant that he would have an exclusive territory all to himself in the Fort Smith area if he chose to become a distributor.\nThe documentary evidence before the chancellor consisted of two major instruments.\nThe first is a list of questions labeled \u201cQuestionnaire to be Completed by Distributor\u201d [hereinafter referred to as \u201cQuestionnaire\u201d] which was signed by appellant and appellee\u2019s representative and which purported to serve two purposes: to enable appellee, Sells Enterprises, Inc., to properly consider appellant\u2019s application to be one of its distributors; and to verify whether appellant was certain that appellee\u2019s representative, Higgins, had covered all \u201cimportant aspects of the Sells Enterprises, Inc. Distributor Program.\u201d\nThe second is a contract labeled \u201cInitial Purchase Order and Independent Distributor Agreement\u201d [hereinafter referred to as \u201cAgreement\u201d] which was signed by both appellant and appellee\u2019s agent and which purports to be the entire agreement between the appellee and the appellant making the latter a distributor responsible for developing sales for appellee\u2019s products in a \u201cgeneral geographic area\u201d including Fort Smith and vicinity.\nThe significant testimonial evidence heard by the chancellor consisted of testimony by the appellant, his wife, Sharon, and appellee\u2019s representative, Bill Higgins.\nThe testimony presented by Higgins clearly conflicted with that of appellant and his wife concerning conversations these parties had prior to entering the \u201cAgreement.\u201d Higgins testified to several important facts:\n1. He took about 45 minutes or an hour to explain the entire program to the Kerns and gave them a copy of both the \u201cAgreement\u201d and \u201cQuestionnaire\u201d to take home.\n2. He informed the Kerns that the Federal Trade Commission would not allow appellee, Sells, to assign an exclusive territory.\n3. He explained paragraph 16 of the \u201cQuestionnaire\u201d to the Kerns, stating that there may be other distributors selected or currently established in the Fort Smith area, and they indicated they understood this on their answer to the \u201cQuestionnaire.\u201d\n4. The representative testified repeatedly that he had never promised the Kerns an exclusive sales territory and that he had made no misrepresentation or fraudulent statements with regard to the appellee\u2019s marketing program.\nAppellant\u2019s testimony was conflicting:\nMr. Higgins told me \u201c[I]t would be my territory to work as I saw fit\u201d; \u201cI would be the only one, that they would consider putting another distributor like it in Springdale-Fayetteville area\u201d; but \u201c[T]here was no one else\u201d in the Fort Smith area.\u201d\nNeither of the written documents referred to can be construed to support Kern\u2019s testimony that Higgins promised him an exclusive territory. Paragraph seven of the \u201cQuestionnaire\u201d serves to inform appellant that to grant an exclusive territory would be illegal under the Sherman Anti-Trust Act. Although the statement about the Sherman Anti-Trust Act may or may not be correct, it serves to support Higgins\u2019 testimony that an exclusive territory was not promised. The \u201cQuestionnaire\u201d further stated in paragraph 16 that there \u201c[M]ay be other distributors selected or currently established in the area.\u201d Paragraph two of the \u201cAgreement\u201d provides that appellant shall devote his efforts to developing sales for the products not only in Fort Smith and Sebastian County but also in all surrounding counties in the general geographic area; it further provided that appellant\u2019s efforts would not be limited to these areas. These documents clearly indicate that there were to be no territorial limits on appellant\u2019s distributorship. We cannot say, therefore, in light of the testimony and documentary evidence before the chancellor that her findings of fact were erroneous.\nAffirmed.",
        "type": "majority",
        "author": "Richard B. Adkisson, Chief Justice."
      }
    ],
    "attorneys": [
      "Martin, Vater & Karr, by: Charles Karr, for appellant.",
      "Jones, Gilbreath & Jones, by: Mark A. Moll, for appellee."
    ],
    "corrections": "",
    "head_matter": "Edward J. KERN v. SELLS ENTERPRISES, INC., A Georgia Corporation\n80-198\n612 S.W. 2d 94\nSupreme Court of Arkansas\nOpinion delivered February 16, 1981\n[Rehearing denied March 23, 1981.]\nMartin, Vater & Karr, by: Charles Karr, for appellant.\nJones, Gilbreath & Jones, by: Mark A. Moll, for appellee."
  },
  "file_name": "0904-01",
  "first_page_order": 966,
  "last_page_order": 969
}