86 S.W. 837 (Ark. 1905), Goerke v. Rodgers

Citation:86 S.W. 837, 75 Ark. 72
Opinion Judge:HILL, C. J.
Party Name:GOERKE v. RODGERS
Attorney:P. D. McCulloch, for appellant. N. W. Norton, for appellee.
Case Date:April 15, 1905
Court:Supreme Court of Arkansas
 
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Page 837

86 S.W. 837 (Ark. 1905)

75 Ark. 72

GOERKE

v.

RODGERS

Supreme Court of Arkansas

April 15, 1905

Appeal from Lee Chancery Court, EDWARD D. ROBERTSON, Judge.

Reversed.

Judgment reversed and cause dismissed.

P. D. McCulloch, for appellant.

The written contract must govern. 71 Ark. 614; 66 Ark. 155; 24 Am. & Eng. Enc. Law, 650. One who asks a court of equity to reform a writing must show that he has been free from carelessness in the matter. 70 Ark. 512; 24 Am. & Eng. Enc. Law, 656; 162 Mo. 424; 93 Va. 349.

N. W. Norton, for appellee.

A chancellor's findings will not be reversed unless they are against the preponderance of the evidence. 44 Ark. 216; 71 Ark. 614.

OPINION

HILL, C. J.

Rodgers owned a tract of land in Lee County, of which 2,000 acres were in cultivation, and 3,000 in timber. Goerke was a lumberman, and, in pursuance of a verbal agreement selling him the timber and specifying the time in which it was to be cut, went upon the land and commenced cutting. Disagreements arose, and Rodgers sued Goerke, and attached his outfit, and claimed the contract was terminated. In settlement of their differences, they entered into a written contract on April 5, 1902. The contract set forth with particularity the terms of [75 Ark. 73] the purchase of the timber, the time for its completion, and the manner of its execution, and detailed the respective rights and obligations of the parties, and was made retrospective to cover the operations under the former contract, and contained matters not theretofore embraced. In the verbal contract there seems to have been an understanding that Rodgers could designate twelve months in advance certain lands he wanted to put in cultivation, and Goerke would then have to take the timber from such tract, and turn the land over to Rodgers for cultivation. The term of the verbal contract was five years, and in the written contract it is provided that if at the end of five years Goerke has a sawmill on the land cutting timber he shall have two more years to cut the timber. On January 5, 1903, Rodgers brought suit in chancery to reform the written contract of April 5, 1902, by the insertion therein of the following clause: "It is expressly agreed and understood that, by giving twelve months' notice to G. A. Goerke or his assigns, H. P. Rodgers or his assigns may enter upon any lands embraced...

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