Goerke v. Rodgers

• Decision Date: 15 April 1905
• Parties: GOERKE v. RODGERS.
• Court: Arkansas Supreme Court

Page 837

86 S.W. 837

GOERKE v. RODGERS.

Supreme Court of Arkansas.

April 15, 1905.

Appeal from Lee Chancery Court; Robertson, Chancellor.

Suit by H. P. Rodgers against G. A. Goerke for the reformation of a lumbering contract. From a decree in favor of complainant, defendant appeals. Reversed.

P. D. McCulloch, for appellant. N. W. Norton, for appellee.

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. This contract set forth with particularity the terms of the purchase of the timber, the time for its completion, 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, 12 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 in this contract, not exceeding 320 acres during any one year, and cut and deaden the timber preparatory to cultivation. G. A. Goerke agrees for himself and his assigns that he will take the timber from the lands above mentioned within the time of such notice, to-wit: twelve months, and after the expiration of said twelve months' notice then H. P. Rodgers or his assigns may cut and deaden timber and the right of said G. A. Goerke and his assigns to the timber on that part of the land terminates."

Rodgers alleged this clause was mutually agreed upon, and was omitted from the contract by inadvertence in drafting. Goerke denied this, and alleged it was not mutually agreed to, but purposely omitted from the contract. This issue was tried before the chancellor, who found in favor of Rodgers, and decreed accordingly. Rodgers sustained his allegations with his emphatic testimony to the effect that this clause was positively agreed to, and it was a mere oversight that it was not incorporated in the contract, and he thought it was in the contract until long afterwards, when he discovered the omission. He explains the importance of it to his plan of improving and clearing his plantation, and he is supported in this by his manager, who testified that the original verbal contract had substantially the same...