Bates v. Ford

• Decision Date: 12 January 1914
• Parties: BATES v. FORD
• Court: Arkansas Supreme Court

162 S.W. 1097

110 Ark. 567

BATES v. FORD

Supreme Court of Arkansas

January 12, 1914

Appeal from Yell Circuit Court, Danville District; Hugh Basham Judge; affirmed.

Judgment affirmed.

Bullock & Davis and John M. Parker, for appellants.

1. There is no competent evidence to sustain the verdict. The burden was on the appellee to establish not only the breach of the contract by the defendants, but also that the market price of the timber left standing was at the time of the breach more than the contract price. 47 Ark. 519; 2 Ark. 397.

2. Difference in the value of the timber at the time of the breach and the contract price is the measure of damages. 39 Cyc. 2112-13-14, and authorities cited in notes 50, 51, 52 53 and 60. Instruction 1 errs in not so instructing the jury. Standing alone and devoid of definition of the material parts of the contract, instruction 2 is too general. 49 Ark. 134 62 S.W.64; 76 Ark. 233.

3. Instruction 8 should have been given. 94 S.W.47-49; 88 Ark. 363; 23 Ark. 557; 34 N.W. 880; 25 N.W. 513; 63 Ark. 259; 8 Cyc. 516, 517.

OPINION

MCCULLOCH, C. J.

This is an action instituted by appellee against appellants to recover damages alleged to have been sustained by reason of breach of a contract for the sale of standing timber on certain tracts of land owned by appellants.

Appellants executed to appellee a written contract, whereby they agreed to sell the pine and oak timber on said tracts of land for prices of $ 1.50 and $ 2 per thousand feet. The contract further specified that appellee should erect his sawmill at a railroad station near the lands, and that the timber should be paid for when sawed into lumber and loaded on cars at the station. Appellee erected the sawmill at the station named, and sawed up part of the timber.

There is a controversy between the parties as to which of them committed the breach of the contract, and the trial jury returned a verdict in favor of appellee assessing his damages in the sum of $ 100.

The testimony of the respective parties was sharply in conflict, each contending that the other had first broken the contract.

That conflict has been settled in appellee's favor by the verdict of the jury.

Appellants requested numerous instructions, but the court refused to give them and submitted the case on the following two instructions:

"No. 1. You are instructed that if the defendants violated any of the material provisions of their contract to sell the timber to the plaintiff, then you will find for the plaintiff and assess his damages at the difference between the market value of the timber at time of the contract and the price agreed to be paid by the plaintiff."

"No. 2. If the plaintiff failed to comply with any material part of his contract without defendant's consent he can not recover damages for any failure of defendants to comply with their part of the contract."

It is insisted, in the first place, by way of assignment of error, that there is no testimony tending to show that, at the time of the alleged breach of the contract, the timber was worth more than the price stipulated in the contract and that, therefore, no damages are proved. Appellee attempted to show the profits which he lost by reason of not being permitted to cut the timber and saw it up at his mill and sell it. He introduced no proof directly showing a difference in the market value, but he testified concerning the market value of timber, the cost of production, and the cost of hauling the timber. The jury had the right to consider these facts in determining the fair market value of the timber, and we are of the opinion that it was sufficient to warrant the jury in reaching a conclusion as to the value.

We can not say, therefore, that the verdict is wholly without evidence to sustain it as to the difference in value of the timber.

It is next contended that the first instruction given by the court is erroneous in fixing the damages at...