Yarbro v. Purser

• Decision Date: 19 March 1917
• Docket Number: 18893
• Citation: 114 Miss. 75,74 So. 425
• Court: Mississippi Supreme Court
• Parties: YARBRO v. PURSER

74 So. 425

114 Miss. 75

YARBRO v. PURSER

No. 18893

Supreme Court of Mississippi

March 19, 1917

Division B

APPEAL from the circuit court of Hinds county, HON. W. H. POTTER Judge.

Suit by G. D. Purser against E. B. Yarbro. From judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed and remanded.

Howie &amp Howie, for appellant.

P. L. Clifton, L. C. Hallam, C. D. Potter and Phil Christman, for appellee.

OPINION

ETHRIDGE, J.

G. D. Purser, the appellee, sued the appellant in the circuit court of Hinds county first district, for the sum of four hundred sixteen dollars and forty cents alleged to be due on a contract between Yarbro and Purser by which Yarbro undertook to pay Purser one dollar per thousand for timber averaging twenty inches in diameter, and for which Purser was to procure some person to purchase from Yarbro. This agreement is evidenced by the following instrument:

"Know all men by these presents that E. B. Yarbro is due G. D. Purser one dollar per M. on all pine twenty inches in diameter and up, clear, that Yarbro has sold to Union Timber & Supply Company on Elton plantation. As said Union Timber & Supply Company cuts and pays Yarbro the stumpage, then Yarbro is to pay G. D. Purser the one dollar per M. due him.

"E. B. YARBRO."

Purser alleges that he procured a purchaser, and that the contract was made by D. H. Smith, doing business under the firm name of Union Timber & Supply Company, and Yarbro; and the contract was duly entered into; and that Smith put up a forfeiture of five hundred dollars to carry out his contract, and began the cutting of the timber in question. He had until January 1, 1916, in which to cut the timber, but, becoming embarrassed, financially he entered into an agreement with Yarbro by which he relinquished his right under the contract, and Yarbro returned the five hundred dollars paid as a guaranty of carrying out the contract, and in addition to that paid him two hundred dollars in money. This contract releasing Smith in which the timber was surrendered to Yarbro is dated May 14, 1914, more than a year and a half before the expiration of the time in which to carry out the contract. The exhibits embracing the contracts were made exhibits to the declaration. Yarbro demurred to this declaration, and the demurrer was overruled. Thereupon Yarbro filed a plea of general issue and also a special plea, averring in the special plea that there has been a settlement of the matters involved between the parties in the suit and the payment of balance due under said agreement. This plea avers that the plaintiff and defendant entered into an agreement to submit the matters in dispute between them for arbitration by three parties, one of which was to be selected by Purser, and one by Yarbro, and a third by the master of the Masonic lodge at Jackson, all of said arbitrators to be members of the Masonic fraternity; that the arbitrators were selected in accordance therewith and a written agreement entered into to abide by the result of such arbitration, each agreeing that they would take no legal proceedings with reference thereto, but would accept the finding made in writing by the parties so selected as arbitrators. This agreement is made an exhibit to the special plea, and recites that there was a suit then pending by Purser against Yarbro for the sum of eighty dollars and thirty-four cents which was to be dismissed and the costs to be paid by the party who failed to sustain his contention before the arbitrators. It was to include also all timber cut by J. W. Evans up to the 4th day of February, 1914, twenty inches in diameter up, on the Elton plantation. It was further agreed that the witness should be examined in the presence of all of the arbitrators and legal formalities and rules of evidence and procedure were waived. It was then the agreement that the arbitrators should pass upon five propositions as follows:

"It is agreed that the arbitrators shall pass on the following questions:

"(1) Whether E. B. Yarbro should pay G. D. Purser for the timber cut by J. W. Evans, herein referred to, which amounts to eighty thousand three hundred forty feet at one dollar per thousand.

"(2) Whether E. B. Yarbro or G. D. Purser should pay for the expense of collecting the four dollars and fifty cents per thousand from D. H. Smith under contract of sale to him both attorney's fees and other expenses.

"(3) Whether E. B. Yarbro or G. D. Purser should bear the expense and trouble of looking after the logs and scaling of the...