Batte Brothers v. Battle

• Decision Date: 23 June 1919
• Docket Number: 52
• Citation: 213 S.W. 379,139 Ark. 302
• Parties: BATTE BROTHERS v. BATTLE
• Court: Arkansas Supreme Court

213 S.W. 379

139 Ark. 302

BATTE BROTHERS v. BATTLE

No. 52

Supreme Court of Arkansas

June 23, 1919

Appeal from Hempstead Circuit Court; Geo. R. Haynie, Judge affirmed.

Judgment affirmed.

J. D Cook, for appellants.

1. The court erred in the exclusion of the testimony of Batte and Hicks as to the market value of merchantable cypress lumber and in the admission of appellee's evidence as to that issue. Appellants did not purchase mill run lumber but merchantable mill run lumber under the contract. Appellants were entitled to prove the market value by sales of the different grades which made up merchantable mill run purchased by appellants. The evidence was competent and material, and its exclusion prejudicial, as the verdict shows. 137 Ark. 592; 66 Ark. 175.

2. It was also error to exclude the evidence of R. S. Bailey as to the market value of lumber covered by the contract upon an examination the day before of one hundred or more logs on the yards of the mill. 82 Ark. 358.

Graves & McFadden, for appellee.

The assignments of error by appellants were not assigned in the motion for new trial and this court will not consider them as they are raised here for the first time and Nos. 4, 5 and 6 are not specific, but too general and sweeping. 75 Ark. 111; 103 N.E. 27; 38 Ark. 528. But if sufficiently definite there was no error by the court. Supra.

2. There was no error in the exclusion of the evidence of Batte and Hicks as to particular offers, sales market value and grades. It was not competent to prove offers for the property to prove the market value of property. 117 Ark. 317; 14 Ark L. R. 230; 30 N.E. 985; 10 R. C. L. 956-7.

The exceptions to testimony were not properly saved in the record. But if the testimony was competent, and it was improperly introduced in the light of the verdict of the jury, it was not reversible error as the jury found for the defendant and no complaint is made of error in the instructions.

OPINION

SMITH, J.

This suit was instituted by Batte Brothers, a copartnership composed of A. W. and C. W. Batte, to recover of J. J. Battle damages on account of an alleged breach of a contract. The jury found for the defendant, and plaintiffs have appealed, and in referring to the parties we shall employ the designations used in the briefs and will refer to appellants as plaintiffs and to appellee as the defendant.

The material portions of the contract are as follows:

"That, for the consideration hereinafter mentioned, said party of the first part hereby sells to the parties of the second part all of the cypress lumber cut from all the merchantable cypress timber on the White, Van Etten and Read tracts of land, estimated at one million feet mill run, more or less, said lumber to be cut from straight logs twelve inches and over in diameter, and of standard length. The party of the first part agrees to guarantee the logs to run as good grade as the trees inspected by the party of the second part on the mill yard.

"It is further agreed that said party of the first part will cut and deliver f. o. b. Fulton, Arkansas, at least one hundred thousand feet per month, unless hindered or prevented by some unavoidable casualty or weather.

"It is further agreed that said party of the first part will cut said lumber in accordance with specifications to to be furnished by the parties of the second part.

"The parties of the second part agree to pay the party of the first part the sum of twenty dollars per thousand feet, cash on ten days' sight draft, mill run, for said lumber when delivered in accordance with specifications f. o. b. and loaded on cars at Fulton, Arkansas."

It was alleged in the complaint that defendant failed and refused to cut and deliver the lumber, and plaintiffs offered testimony in support of that allegation. The case was tried upon the theory that this failure was due to an advance in the price of the lumber over that named in the contract, and much conflicting testimony was offered in regard to the market value of this lumber. On the other hand, the defendant alleged that plaintiffs were to furnish specifications for cutting the lumber but failed to furnish any specifications therefor, and that plaintiffs failed to pay for and receive the lumber which was sawed under the contract or to make the advances thereon which the contract called for.

The real and controlling question in the case was, who breached the contract? Which of the parties failed to perform? And that question of fact was resolved against plaintiffs by the verdict of the jury in favor of defendant.

As tending to support their contention that defendant had refused to manufacture the lumber, plaintiffs offered testimony to the effect that lumber had advanced in price and that defendant failed to perform the contract on that...