Augusta Cooperage Company v. Plant

• Decision Date: 18 February 1924
• Docket Number: 166
• Citation: 259 S.W. 12,163 Ark. 49
• Parties: AUGUSTA COOPERAGE COMPANY v. PLANT
• Court: Arkansas Supreme Court

259 S.W. 12

163 Ark. 49

AUGUSTA COOPERAGE COMPANY v. PLANT

No. 166

Supreme Court of Arkansas

February 18, 1924

Appeal from White Circuit Court; W. D. Davenport, special judge affirmed.

Judgment affirmed.

Geo B. Webster and J. F. Summers, for appellant.

1. If appellee's case can escape the statute of frauds, C. & M Digest, § 4864, it can only do so by virtue of the second clause, viz: the acceptance and actual receipt of a part of the logs alleged to have been sold. Yet nowhere in the record can there be found any evidence satisfactory to the judicial mind of either receipt or acceptance by the appellant. No statement of Massey's, unaccompanied by action on his part, could operate to satisfy the statute. 124 U.S. 52. Under the statute both an acceptance and a receipt are necessary; neither, taken alone, is sufficient. The purchaser must have actually received unfettered dominion and control; there must have been a transfer of possession, either actually, by manual delivery, symbolically, by some substituted delivery, or constructively by a change in the nature of the seller's dominion over the property. 5 Ark. 161; 27 Corp. Juris, 242; 10 Utah 31, 36 P. 132; 116 Ga. 1; 43 S.E. 466. There was no dispute over the facts relied on by appellee to prove receipt and acceptance. It therefore became a question of law which the court should have ruled upon as requested by the appellant. 124 U.S. 48. Independently of the statute of frauds, there was no sale, for there was no delivery. 102 Ark. 621; 100 Ark. 510.

2. The court erred in overruling appellant's motion for continuance, after permitting the amendment of the complaint. Amendments are not permissible when they change the cause of action. 59 Ark. 105; 75 Ark. 465; 67 Ark. 142; 71 Ark. 222.

John E. Miller and C. E. Yingling, for appellee.

1. Appellant's contentions that the testimony does not take the contract out of the operation of the statute of frauds, and also that the number of feet of logs was not sufficiently proved by the testimony, both questions having been submitted to the jury under proper instructions, are settled contrary to such contentions by their verdict. Fagan v. Bourland, 5 Ark. 161, and other cases cited by appellant, do not preclude a recovery by appellant. In determining whether a party has accepted the goods or a part of them and has actually received them, in whole or in part, the intention of the parties and all the circumstances should be taken into consideration. 90 Ark. 131-133; 31 Ark. 155; 37 Ark. 483; 54 Ark. 305; 62 Ark. 592. See also 149 Ark. 318; 124 U.S. 38, 8 S.Ct. 369; 35 Ark. 190; 25 R. C. L. 627, § 246; 27 C. J., § 273. Whether there has been such an acceptance or a receipt of the goods or a part of them by the buyer, under a verbal contract of sale, as will satisfy the statute of frauds and make the buyer liable, is a jury question. 39 Mo. 192; 53 N.H. 605; 71 N.Y. 295; 57 Wis. 358; 15 N.W. 442. Any acts from which it may be inferred that the buyer has taken possession of the goods purchased as owner, present a question for the jury to determine whether the acts were done with the intention to accept, and thus take the case out of the statute. 35 Ark. 190; 10 N.Y. 285; 120 N.Y. 213; 24 N.E. 279; 89 Wis. 86; 61 N.W. 307.

2. Appellant saved exceptions only to the action of the court in permitting the amendment, not to its action in refusing a continuance. There was no error, no abuse of discretion, in denying the motion to continue. 93 Ark. 119, 123, and cases cited; 94 Ark. 430. Cases will be reversed only for prejudicial error. 112 Ark. 507; 137 Ark. 387; 88 Ark. 185, and cases cited; 113 Ark. 83; 152 Ark. 540.

OPINION

WOOD, J.

The appellee instituted this action against the appellant to recover damages for an alleged failure to comply with an oral contract. Appellee alleged that, on or about March 1, 1922, appellant entered into a contract with the appellee to purchase all stave timber which the appellee could cut and remove to the bank of White River, in White County, Arkansas, during the year 1922, from the lands located in what is called "Shadden Bend." That appellee agreed to pay therefor $ 10 per M for all logs which would grade No. 1 and $ 7 per M for all logs which would grade No. 2; that, in compliance with the contract, appellee cut and removed to the bank of White River, at the place agreed upon, 93,750 feet of first grade stave logs and 31,250 feet of second grade stave logs, of the aggregate value of $ 1,156.25, for which appellee prayed judgment.

The appellant, in its answer, denied all the material allegations of the complaint, and alleged that the contract, if made, was void under the statute of frauds.

The appellee testified that he had been engaged in the timber business about five years. Some time in December, 1921, he entered into a contract with one Massey, the agent of appellant, for the sale of his timber. The appellant objected to the testimony because the complaint alleged this contract was made about March 1, 1922. The court overruled his objection, and the witness continued his testimony, stating that he talked to Massey the first time in December, and then about the first of the year, and later, and some time after the first of the year, they entered into the contract, whereby the appellant agreed to buy appellee's stave stuff. Here the appellant objected to any proof pertaining to any logs other than No. 1 and No. 2, as alleged in the complaint. The court overruled the objection, and the witness continued. Massey stated that they were buying the logs for staves, and cautioned the witness about cutting them in multiples of 32 inches. They were to take five times the length of 32-inch blocks. The timber was located in Shadden Bend, and the logs were to be delivered on the bank of the river, on as high ground as possible as they could be conveniently placed, so that the appellant's rafters could roll them into the river. Massey was to grade them, and to pay $ 10 per M for No. 1 and $ 7 per M for No. 2 stave logs. Witness had been furnishing logs to Wilkerson, who represented a veneer plant at Des Arc and was paying appellee $ 19 per M for logs on the bank. There were some logs left that Wilkerson did not take. These were on the lower yard, down the river. Massey agreed to scale and take those. He scaled some elm, and said he would scale the other when witness got it out. Witness commenced after the first of the year. He agreed to get out the timber, and agreed to put out the remainder of it that year, delivered the spring of 1922. Witness estimated that he put out 125,000 feet, and a few hundred feet over that was delivered, 1,030 logs--93,000 and some odd feet of No. 1-- and the remainder No. 2. The appellant never paid anything, and owed for all these logs. Massey said they had all the stuff, and they were not going to take it. Massey was on the yard while appellee's men were cutting and delivering the logs. He looked at the logs, and cautioned the witness about putting the logs on high ground and keeping them from behind trees, so that his rafters could roll them into the river. Massey knew about the character of the timber on that tract of land. He had gone over and tried to buy it before witness bought it, and then bought from witness the next year. Witness was operating only one log job in Shadden Bend. He had several different yards. Witness arrived at the number of feet by going to the log piles and scaling some of the small, medium and large logs, and in this manner arriving at the average per log, and then multiplied that by the number of logs. Witness never sold logs to any one before measuring that way, and he tried to get Massey to scale the logs. Witness did not go by checking off and marking each log, but he could make the estimate by looking at the logs, and considering the number of knots, and whether they were shaky or rotten or split logs. Witness had a man to help him make the estimate. Witness saw Massey at Newport, with Captain Huff and Mr. Buchanan. Witness didn't ask Massey, on that occasion, if he was in the market for logs, and didn't remember Massey saying that witness didn't have anything he wanted. Witness sold some logs to Wilkerson in the fall of 1921. Witness was asked the following question: "Now, when you made this sale of logs to Mr. Wilkerson, what did you tell Mr. Wilkerson as to what he was to get?" Here appellee's counsel asked leave to amend the complaint by inserting the words "stave timber," which the court permitted, over the objection of appellant. Counsel for appellant stated that it was not prepared to make defense to such amendment, and asked the court to continue the cause that it might prepare its defense. This motion was overruled.

The witness, continuing, stated that he sold Massey all the stave timber he put off that place in 1920 and 1921. Massey took up some elm timber under this contract. Witness didn't remember the date. York, witness' foreman, kept up with the scaling. Witness received a check for the elm.

York testified that he was the foreman of the appellee in the winter and spring of 1922, cutting timber in Shadden Bend. He had a conversation with Massey, appellant's log buyer and scaler. Witness didn't know personally about the terms of the contract between appellee and appellant. After witness learned about the contract, Massey gave him directions about cutting the stave timber. They were there on what they called the gum yard at the river. Massey told witness that he would take the elm and cottonwood and some small sycamore, and to cut it in multiples of 32 inches, that is, make the log long enough to multiply into 32-inch length, to avoid waste. Massey told witness how to pile the logs. This was while he was on what is called the...