Augusta Cooperage Co. v. Dowdy

• Decision Date: 20 June 1921
• Docket Number: 61
• Citation: 232 S.W. 1,149 Ark. 318
• Parties: AUGUSTA COOPERAGE COMPANY v. DOWDY
• Court: Arkansas Supreme Court

232 S.W. 1

149 Ark. 318

AUGUSTA COOPERAGE COMPANY v. DOWDY

No. 61

Supreme Court of Arkansas

June 20, 1921

Appeal from Woodruff Circuit Court, Northern District; J. M Jackson, Judge; affirmed.

Judgment affirmed.

J. F Summers, for appellant.

Geo. B Webster, St. Louis, Mo., of counsel.

1. Granting that there was a contract, it was within the statute of frauds and not enforceable. The timber claimed was of more than $ 30 in value, and there was no memorandum of writing, nor any delivery under the alleged parol contract. 79 Ark. 338; 20 Cyc. 247.

2. The instructions given for appellee are vague and indefinite and assume as a fact that Thoma had authority to make the alleged contract. There is no proof in the record to show the quantity of logs nor any place of delivery.

3. The uncontradicted evidence shows that Thoma did not have authority to make a future contract for a season's output of logs. On the question of agency alone for the failure of proof the cause should be reversed. 105 Ark. 111. See, also, 174 S.W. 227; 215 Id. 646. Instruction No. 5 for appellee is especially vicious and misleading.

4. It was error to refuse the instructions asked by appellant, as they clearly state the law. 97 Ark. 613.

5. A peremptory instruction should have been given for appellant. 132 Ark. 155; 126 Id. 405.

H. M. Woods and Chas. F. Cole, for appellees.

1. The contract was not within the statute of frauds. Appellees alleged and proved that they contracted to appellant for that season's entire output of logs and appellant accepted and paid for three separate lots of logs. This was an acceptance of part of the logs and removed the statutory bar. C. & M. Digest, § 5864; 79 Ark. 338.

2. Thoma, who acted for appellant in making the contract, had authority to make it. Appellees dealt with him as a general agent, and had authority to bind appellant. The presumption is, in the absence of notice to the contrary, where one deals with an admitted agent that the agent is acting within the scope of his authority, and the burden is on the principal to show the contrary. 100 Ark. 360; 112 Id. 63; 137 Id. 418. No attempt was made to show that appellees had any notice of any limitations of Thoma's authority, and the proof shows that they had none. 105 Ark. 111, relied on by appellant, is not in point.

3. A contract was proved, and it was not void under the statute of frauds. Under the undisputed testimony plaintiffs were entitled to recover, and the verdict is not excessive but sustained by the proof.

OPINION

HUMPHREYS, J.

Appellees instituted this suit against appellant in the Woodruff Circuit Court, Northern District, to recover $ 1,568.40 for 6,000 feet of ash and 60,000 feet of gum logs alleged to have been delivered on the river at Lockhart Ferry, pursuant to an oral contract whereby appellees agreed and contracted to sell to appellant all the ash and gum appellees could cut and deliver during the season with three teams and two saws from appellees' lands in Black River bottom.

Appellant interposed the defenses to the cause of action that (1) it did not enter into the alleged contract; (2) its agent was not authorized to make the alleged contract, and (3) if such contract was made, it was contrary to the statute of frauds and void, because the value of the logs was more than $ 30, and the contract was not in writing, signed by the parties.

Relative to the contract, appellees introduced the following witnesses: Arthur Wilson, Albert Wilson, R. A. Dowdy, Cecil Sexton and G. A. Patterson.

Arthur Wilson testified that, as the representative of appellees, he entered into an oral contract with Pete Thoma, as representative of appellant, on or about the 26th day of August, 1920, to sell appellant all logs, during the logging season of 60 to 90 days, that he could cut and deliver with two saws and three teams, off the appellees' lands in Black River bottom; that the price agreed upon was $ 22.50 a thousand for soft woods, and $ 35.00 for ash; that Thoma scaled and took up three lots of logs under the contract, and, after the fourth lot of about 66,671 feet was piled on the bank, the place agreed upon for delivery, Thoma refused to scale and take them up; that he said he would write the company; that, later, he stopped on his way up the river and said: "Do you want your logs scaled?" and I said "Yes." "I asked him if he would allow another scale, and he said 'Yes.'" The company's raftsman rolled 4,000 feet of this lot of logs in the river and they were taken up. The others were left on the river bank.

Albert Wilson testified that he heard a conversation between Arthur Wilson and Pete Thoma relative to the purchase of the Dowdy timber; that, after Thoma bought his timber, he introduced the parties; that Thoma told Wilson he would take all the logs he could put out, up to a million feet, and pay $ 22.00 a thousand for soft woods and $ 35.00 for ash; that Wilson said he would run two saws and three teams; that he received appellant's check for the logs he sold it; that Thoma bought a great many logs up and down the river for appellant.

R. A Dowdy testified that appellees employed Arthur Wilson as their foreman to put out their timber in Black River bottom; that he was informed by Wilson that Thoma had offered to take all Wilson could put out with his force during the season, for $ 22.50 a thousand; that he told Wilson to let Thoma have all the logs; that the first scales contained a small amount of ash, and he accepted checks in full payment of the statement, in which a small amount of ash was figured in at $ 27.50 and $ 22.50 a thousand; that he had not conferred at the time with Wilson and did not know that the agreed price for ash was $ 35.00 a thousand; that, after Thoma refused to take up the logs, he saw E. J. Chalfant, the manager of appellant company, and Mr. Chalfant said: "If Thoma agreed to take your logs, he will do so;" that, afterward, he saw Thoma in the presence of Wilson, and Thoma did not deny the contract, but said appellant instructed him not to take up any more logs on the bank of the river; that Thoma raised the question about appellees having sold logs to others; that they...