Arkansas Short Leaf Lumber Co. v. Mcinturf

• Decision Date: 29 April 1918
• Docket Number: 330
• Citation: 203 S.W. 1047,134 Ark. 284
• Parties: ARKANSAS SHORT LEAF LUMBER COMPANY v. MCINTURF
• Court: Arkansas Supreme Court

203 S.W. 1047

134 Ark. 284

ARKANSAS SHORT LEAF LUMBER COMPANY v. MCINTURF

No. 330

Supreme Court of Arkansas

April 29, 1918

Appeal from Jefferson Circuit Court; W. B. Sorrells, Judge affirmed.

Decree reversed and cause remanded. Judgment reversed and cause remanded.

M Danaher and Palmer Danaher, for appellant.

1. It was error to refuse defendant's instruction No. 10. The true rule of damages is the difference between the contract price and the price at which the vendee could have obtained similar goods at the time and place mentioned in the contract. The party injured must make every reasonable effort to diminish or minimize the damages. 146 N.W. 422; 46 Kan 192; 131 N.W. 559, 564; 84 Am. Dec. 330; 20 Id. 341; Benjamin on Sales, 887; 105 U.S. 709-717; 6 Am. St. 356; 81 Ark. 347.

2. The minds of the party never really met, and the order was not given within the time limited.

3. The contract was void under the statute of frauds. Kirby's Dig., § 3984. The two cars first delivered were sample cars and not sufficient to take the contract out of the statute. 20 Cyc. 246, note 95. It was error to refuse instructions 6, 7 and 9.

4. The court erred in admitting in evidence the price list in Chicago. 92 Ark. 111; 121 Id. 150.

Coleman & Gantt, for appellee.

1. It was not error to refuse No. 10. 35 Cyc. 605 g; 49 Ark. 70; 74 Id. 270; 86 Id. 175; 102 Id. 152; 142 F. 706; 169 Id. 578; 111 C. C. A. 14; 189 F 576; 79 Ark. 338.

2. Instructions 6, 7 and 9 were properly refused. They set up a false and misleading test or criterion. 20 Cyc. 246. All that appellant was entitled to was covered by its 1 and 2. No. 9 ignores appellee's case and is arbitrary. It states a non sequitur. 35 Cyc. 650.

3. The price list in Chicago was properly admitted in evidence. 83 Ark. 87; 112 Id. 110; 121 Id. 160; 35 Cyc. 638 (c).3. Failure to sound the horn was not negligence per se. The second instruction was not the law. 127 Ark. 279; 116 Id. 125; 41 L. R. A. (N. S.) 337; 63 L. R. A. 668.

4. The third instruction was without evidence to support it. 70 Ark. 441. The fourth was abstract. Ib.

5. No. 4 1/2 assumes that it was negligence for the driver to back the car into the street. A pedestrian must use ordinary care for his own safety. 97 Ark. 469; 102 Id. 351.

6. The fifth was error. It told the jury as matter of law that the driver was bound to anticipate the presence of pedestrians in the streets. The only duty imposed on him was the exercise of ordinary care to see and avoid injury to them. 98 N.E. 369. The sixth was also erroneous.

7. There was error also in refusing defendant's instructions. Plaintiff was clearly guilty of contributory negligence and the driver used ordinary care. 133 N.Y.S. 743, 120 Id. 883; 121 P. 983; 140 Id. 586, etc. See also 42 L. R. A. (N. S.) 1178, 1181; 76 N.E. 224; 51 L. R. A. (N. S.) 989.

8. The damages were excessive. Plaintiff has once before been injured and his condition was not caused solely by the last injury.

G. G. Pope and Will Steele, for appellee.

1. No improper evidence was admitted. The evidence complained of was excluded. 117 Ark. 579; 198 S.W. 94.

2. The law of Texas governs this case. 98 Ark. 256; 104 Id. 327. Under the law of Texas it was the duty of the driver to look and give warning. Acts 1917, 479 Texas.

3. There is no error in the instructions. They state the law. 110 Ark. 414; 78 Id. 22; 88 Id. 444; 93 Id. 599; 99 Id. 597; 81 Id. 15; 197 S.W. 710; 88 Id. 250; 103 Id. 374; 118 S.W. 215; 159 Id. 915; 109 Ark. 575; 118 Id. 507; 97 Id. 472; 102 Id. 355; 94 Id. 251; 179 S.W. 860; 98 A. 1063; 99 Ark. 259; 78 Id. 431; 29 Cyc. 516; 72 Ark. 572; 129 Id. 568; 102 Id. 354, etc.

4. Defendant's instructions were properly refused. 102 Ark. 351. They were covered by others given. 101 Id. 120; Ib. 569; 108 Id. 429.

5. The damages are not excessive. 94 Ark. 270; 121 Id. 360; 88 Id. 225.

6. Negligence is admitted, and there was no contributory negligence by appellee. There is no reversible error. The instructions are full and fair, and there is no error.

SMITH, J. MCCULLOCH, C. J.

OPINION

SMITH, J.

Appellee brought this suit to recover damages on account of the breach of an alleged contract for the sale of lumber. He alleged in his complaint that he and the appellant lumber company, hereinafter referred to as the company, entered into a contract on December 28, 1916, whereby he purchased two cars of green white oak lumber with the further agreement that if the two cars should prove satisfactory the company would sell and deliver him 500,000 feet in all of such lumber at the prices shown in the following list, to be delivered on cars at the company's mill at the rate of 100,000 feet per month, to-wit:

"3 1/2 inch and 4 inch

No. 1 common at $ 31.00 per M feet.

3 1/2 inch and 4 inch

No. 2 common at $ 19.50 per M feet.

3 inch

No. 1 common at $ 29.00 per M feet.

3 inch

No. 2 common at $ 17.50 per M feet.

2 inch

No. 1 common at $ 26.50 per M feet.

2 inch

No. 2 common at $ 16.50 per M feet."

The complaint alleged that it was further agreed that appellee should have thirty days after the delivery of said first two cars of lumber in which to notify the company of his acceptance of the remainder of said 500,000 feet of lumber, and that appellee within the time and as agreed upon notified the company that he would accept and purchase the remainder of said 500,000 feet of lumber, and an order for 102,000 feet, to be delivered within two weeks, was given and accepted and that order was filled before the company failed and refused to furnish and deliver the remainder, although specific directions in accordance with the terms of the contract were given, and that on or about June 18, 1917, the manager of the company notified appellee that the remainder of the order would not be filled, and this suit was brought to recover the difference between the contract price and the market price on the portion of the lumber which the company refused to ship.

The suit was brought by appellee upon the theory that the company refused to comply with the contract because lumber had advanced rapidly in price after the acceptance of the order, and in support of the allegations of the complaint appellee testified substantially as follows: That he received the last of the sample cars on February 3, 1917, and on February 17, 1917, gave notice that he would take the remainder of the half-million feet and at the same time gave an order for 34,000 feet of 3 inch, 34,000 feet of 3 1/2 inch, and 34,000 feet of 4 inch stock, and this order is referred to as the six-car shipment. This order was accepted, and it was then agreed that as soon as it could be filled, specifications for the remainder would be given. The last car of the lumber ordered on February 17 was not delivered until June 18, 1917, and after that time the company refused to make further deliveries.

It is insisted on behalf of the company that the minds of the parties never met, and that the order for the lumber was not given within the time limited by the contract; that the contract was void under the statute of frauds, and that the company had, in fact, filled all that part of the order upon the price of which the parties had agreed. A Mr. Murphy represented the company in the transaction, and he testified that a controversy arose over the price of the remainder of the lumber, and that appellee demanded the shipment of this remainder in 2 inch No. 1 common at $ 26.50 per thousand, whereas the company insisted that the contract price was $ 27 per thousand. The court instructed the jury that there could be no recovery of any damages unless they found that the contract price was $ 26.50 per thousand, and not $ 27, so that this issue is concluded by the verdict of the jury. There was also an issue of fact as to whether the orders were placed within the time limited by the contract; but an instruction was given which told the jury that there could be no recovery unless the contract in that respect was complied with; so that that question, too, passes out of the case under the verdict of the jury.

The court refused to give instructions numbered 6, 7 and 9, requested by appellant, which are as follows:

"6. The delivery of the first two sample cars was not sufficient to take the contract out of the statute of frauds."

"7. If you find from the evidence that the two cars of lumber first purchased by plaintiff were sample cars, the receipt of same by plaintiff was not sufficient to take the contract out of the statute of frauds."

"9. If you find from the evidence that at the time the six cars were ordered the defendant and plaintiff got into a controversy as to the price of the remainder of the lumber wanted, plaintiff contending for a price of twenty-six dollars and a half, and defendant for a price of twenty-seven dollars per thousand for number one common, and that the defendant offered to fill the order at twenty-seven dollars, but plaintiff refused to accept same at twenty-seven dollars, and at that the six cars about which there was no controversy were delivered, then the six cars can not be held to have been delivered as and for a part of the whole 500,000 feet, and the delivery thereof does not take the case out of the statute of frauds, and was not sufficient to bind the bargain."

We discuss these instructions together. The case was not tried upon the theory that the shipment of the two cars took the transaction out of the statute of frauds, although it is argued that such would be the effect of their shipment if they were shipped in fulfillment of the contract. The question in the case is that of the entirety of the contract and the instructions upon which appellee predicated his right of recovery required a finding that the parties ...