Augusta Cooperage Company v. Bloch

• Decision Date: 10 April 1922
• Docket Number: 289
• Citation: 239 S.W. 760,153 Ark. 133
• Parties: AUGUSTA COOPERAGE COMPANY v. BLOCH
• Court: Arkansas Supreme Court

239 S.W. 760

153 Ark. 133

AUGUSTA COOPERAGE COMPANY v. BLOCH

No. 289

Supreme Court of Arkansas

April 10, 1922

Appeal from Jackson Chancery Court; Lyman F. Reeder, Chancellor affirmed.

Decree affirmed.

J F. Summers, for appellant; Geo. B. Webster, of counsel.

Written instruments may be reformed on the ground of mutual mistake and proof of such mistake may be established by parol evidence. 98 Ark. 10; 71 Ark. 614; 98 Ark. 23; 144 Ark. 23.

The elm timber was not wilfully cut, but was done in good faith, and the value of the property when first taken must govern. 87 Ark. 80.

The only competent evidence of value of the timber was by actual sales, which fixed the market price. 92 Ark. 297.

Gustave Jones, for appellee.

The case was improperly transferred to the chancery court, to escape the award of treble damages. This court has held however, that in cases originating in chancery treble damages can be awarded.

Reformation of a contract, on account of the mistake of one of the parties, will not be granted. 99 Ark. 480; 83 Ark. 131; 74 Ark. 336; 89 Ark. 668. To justify reformation, proof of mistake must be established not merely by a preponderance of the evidence, but by proof that is clear, unequivocal and decisive. 101 Ark. 46; 108 Ark. 503; 104 Ark. 475; 132 Ark. 227; 94 Ark. 621; 120 Ark. 326; 111 Ark. 205.

The trespass was wilful, and treble damages should have been awarded. 69 Ark. 302; 87 Ark. 80; 96 Ark. 87; 105 Ark. 157.

The question of value is one entirely of opinions of witnesses and does not require expertness on the subject. 137 Ark. 592; 130 Ark. 547.

OPINION

WOOD, J.

This action was instituted by the appellees against the appellant in the circuit court to recover damages. The appellees alleged that they were the owners of certain tracts of land in sections 22 and 34 in township 10 north, range 3 west, in Jackson County, Arkansas, and that appellant wilfully trespassed upon these lands by cutting and removing therefrom elm timber to the amount of 290,000 feet, which appellant converted into 870,000 staves of the value of $ 17,400, for which appellees prayed judgment.

The appellant answered denying all the material allegations of the complaint and set up that it had purchased of the appellees all the elm timber on the sections mentioned, and that, in a deed executed by the appellees to the appellant, conveying the different kinds of timber the appellant had purchased from the appellees, through mutual mistake the elm timber was omitted. That the appellant, knowing that it had purchased the elm timber and believing that it was included in the deed, proceeded to cut and remove, along with the other timber, 123,000 feet of elm timber from section 22. Appellant denied that it cut and removed any elm timber from section 34. The appellant also alleged that all of the elm timber cut except 33,000 feet was cut more than three years before the commencement of the action and pleaded the statute of limitations to all except 33,000 feet. The appellant made its answer a cross-action against the appellees, and asked that the cause be transferred to equity and that the timber deed be reformed so as to include the elm timber in section 22. The appellees answered denying the allegations of the cross-complaint. The appellant's motion to transfer to equity was granted.

The allegations of appellant's cross-complaint stated a cause of action which entitled appellant to have the cause transferred to the chancery court. The appellant sought reformation of the deed under which it claimed the right to cut the timber in controversy. This gave the chancery court jurisdiction, and, having entertained jurisdiction for that purpose, the court ruled correctly in retaining the cause and in disposing of all the issues involved.

1. The primary question in the case is whether or not the appellees sold to the appellant the elm timber as alleged in appellant's cross-complaint. The appellant contends that the elm timber growing on the tracts mentioned in sections 22 and 34 was sold by the appellees and purchased by the appellant, and this timber should have been mentioned specifically, along with the other timber, in the deed evidencing the transaction; that it was the intention of the parties that this should be done, and that, through mutual mistake of parties in not calling the attention of the draftsman of the deed to this fact, the elm timber was not included therein.

On this issue, a witness who was appellant's superintendent at the time of the alleged sale of timber, testified that he made a survey of the timber before the purchase, and that it was his understanding that appellant was to purchase the gum timber on section 34 and all the soft woods on section 22 suitable for cooperage stock, which included gum, elm, maple, hackberry and sycamore.

Another witness (Massey) for the appellant testified that when he looked over the timber with a view to purchase same J. H. Keel, one of the appellees (who was representing the other appellees), said that appellant would only get the gum species from section 34, but on section 22 appellant would get everything except the oak and hickory. In other words, appellant was to get the soft wood species including gum, elm, maple, hackberry, sycamore, cottonwood, ash and cypress. This witness stated that he was present at Newport when the contract was made for the timber and heard the conversation relative to the contract between the parties, that is, between Lyons and Keel representing the appellees, and Heckart and Diamant representing the appellant. Concerning this conversation the witness said: "Mr. Diamant made the remark, 'I suppose you all know or understand the purpose of this meeting.' Mr. Lyons said, 'Yes.' Mr. Diamant said, 'I understand that Bloch, Lyons and Keel want to sell the gum on No. 34,' having a list there he had prepared, with the gum and elm and different species, and went over the ash, hackberry, maple, etc., on 22, and said, 'Is that right?'" He went ahead with his conversation with Mr. Lyons and he said, "Have you a price?" and Mr. Lyons said, "Yes." Witness "did not go with them when they went to draw the contract."

Mr. Lyons testified concerning the transaction substantially as follows: Diamant, Heckart, Keel and witness met at the hotel, and Diamant told witness that he would like to buy the gum timber on section 34 and section 22 which was owned by Bloch, Lyons, and Keel. He wanted to know what I wanted for it, and I told him I wanted $ 13,000 cash. They agreed upon the consideration and terms of payment and went over to Joe Stayton's office, an attorney, and gave the details to Mr. Stayton. After Mr. Stayton had started writing the contract for the gum on the two sections, something came up about the hackberry, sycamore and tupelo gum. Tupelo gum was not mentioned at first--just the main gum. As there was very little of this timber on these tracts, we decided that we would include those in this price, for it didn't amount to anything from the amount of timber that was standing. The written contract exhibited with the pleadings is absolutely the contract made between the Augusta Cooperage Company and Bloch, Lyons and Keel. It specifies each class of timber specifically as to what they were to get. The witness was asked the following question: "Was there at any time any agreement, understanding or intention to convey to them the elm and ash?" Ans. "No sir, we were under the impression at that time that we had a contract out upon the ash and elm, and that we could not sell it if we wanted to."

J. H. Keel, one of the appellees, testified substantially corroborating the testimony of Lyons. He stated that while Mr. Stayton was drawing the contract the question was asked whether the appellees could put in the ash and the elm with the other varieties of soft wood mentioned, and witness stated, "We couldn't sell the ash and elm. We couldn't let those two go. We could put in the other timber." The reason the witness so stated was because his recollection was "that they had a contract out for both the ash and the elm with other people, which contract had not expired."

We need not pursue this issue further, for it will be observed that there was a sharp conflict in the testimony as to whether or not the appellees sold to the appellant the elm timber, and as to whether or not such timber was omitted from the deed evidencing the transaction through mutual mistake. In view of such conflict in the testimony, it is apparent that the appellant has not proved by a preponderance of...