Beekman Lumber Co. v. Kittrell

• Decision Date: 08 October 1906
• Citation: 96 S.W. 988,80 Ark. 228
• Parties: BEEKMAN LUMBER COMPANY v. KITTRELL
• Court: Arkansas Supreme Court

96 S.W. 988

80 Ark. 228

BEEKMAN LUMBER COMPANY v. KITTRELL

Supreme Court of Arkansas

October 8, 1906

Appeal from Ashley Circuit Court; Z. T. Wood, Judge; affirmed.

Judgment affirmed.

T. M Hooker, for appellant.

1. There was a misjoinder of actions, and the special demurrer should have been sustained. 58 Ark. 136. Breaches of contract requiring different findings are independent causes of action, though arising on the same contract. 47 Mo. 70; 47 Mo. 239; 51 Ia. 576.

2. L W. Kittrell, not being a party to the contract with defendant, could not maintain this suit. Some privity between the plaintiff and the defendant must be shown. 12 Rich. (S C.), 101; 76 Ark. 352. Declarations of an alleged agent are not competent in proof of his agency. 71 Ark. 192. Declarations of a husband as to his agency in transacting business for his wife are not sufficient evidence of his authority to act for her. 44 Ark. 213; McKelvey on Ev. 280; 2 Wharton on Ev. § 1284; 43 Ark. 294.

3. In case of breach of contract, it is the duty of the injured party to employ reasonable efforts to lessen the injury and to make it as light as possible. 1 Sutherland on Dam. 148. "When there is a contract to supply a thing, and it is not supplied, the damages is the difference between the thing you were to have had and the thing you get." Ib. 157. See, also, 57 Ark. 257; 2 Ark. 377; 70 Ark. 39. The damages complained of was too remote, speculative and not susceptible of proof. 57 Ark. 203.

Robert E. Craig, for appellee.

1. The suit was properly brought for the use of L. W. Kittrell, she being the real party in interest. Defendant was not thereby deprived of the benefit of any defence it had under the contract with W. E. Kittrell. The testimony of the latter was admissible to prove his agency.

2. The suit being between the same parties on contract expressed and implied growing out of the same subject-matter, there is no misjoinder. Kirby's Digest, § 6079; Bliss, Code Pl. § § 117, 119-121, 123; Pomeroy on Remedies, § § 437-450.

3. The damages claimed can not be classed as remote and speculative. The exclusive use of the planing plant was engaged for a definite time and under contract to pay definite prices to plaintiff for dressing, ripping and resawing a certain quantity of lumber to be furnished daily by defendant. 69 Ark. 219; 71 Ark. 408.

4. In view of the fact that appellant objected when plaintiff obtained other lumber to dress, after appellant had failed to furnish lumber as agreed, it is now in no position to urge that plaintiff did not employ proper efforts to lessen the injury.

OPINION

RIDDICK, J.

This is an action on contract brought by W. E. Kittrell for the use of his wife, L. W. Kittrell, against the Beekman Lumber Company, to recover damages for breach of contract. The facts, briefly stated, are as follows:

W. E. Kittrell is the husband of L. W. Kittrell. Mrs. Kittrell was in 1902 the owner of a planing mill plant located in Ashley County. The Beekman Lumber Company of Kansas City, Missouri, was engaged in buying and shipping lumber in that county. In that year W. E. Kittrell made a written contract with the Beekman Lumber Company, by which he agreed to dress lumber for that company for certain prices named in the contract, ranging from $ 1.00 to $ 3.00 per thousand according to the kind of lumber and the amount of work to be done on it. The contract contained the following stipulation on the part of Kittrell: "I agree furthermore to dress lumber exclusively for the said Beekman Lumber Company, except in case of the inability of the Beekman Lumber Company to keep at least one machine stocked, and such custom dressing as not to interfere with the interest of the Beekman Lumber Company. I agree also to run the mill at its full capacity eleven hours a day, except in case of unavoidable accident, said capacity to be at least 15,000 feet per day of eleven hours."

On the part of the lumber company there was this stipulation: "The Beekman Lumber Company agrees to furnish the said W. E. Kittrell sufficient lumber to keep said planing mill plant running at its full capacity during this contract, except in cases of delay beyond control of the said Beekman Lumber Company."

The contract provided that it should last four months from May 24, 1902, allowing the lumber company the privilege of extending it to January 1, 1903. The contract was not extended, though the lumber company afterwards furnished lumber for Kittrell to plane. This contract was made in the name of W. E. Kittrell, but he brought this suit in his name for the use and benefit of his wife, L. W. Kittrell, and testified that she was the owner of the property, and that the contract was made for her benefit. The complaint contained two causes of action set out in different paragraphs. The first paragraph set up a failure of the defendant company to furnish lumber sufficient to keep the planing mill plant running at its full capacity, by reason of which failure plaintiff alleged damages in the sum of $ 1,720.28. The second count was an action to recover for planing lumber done after the expiration of the written contract referred to, and for which plaintiff claimed the sum of $ 314.95. as due and unpaid.

The defendant filed a demurrer to the complaint on account of the misjoinder of actions, which was overruled. It also filed an answer denying the material allegations of the complaint.

The plaintiff recovered judgment for $ 925 on the first count in the complaint, and for $ 314.95 on the second with interest, and defendant appealed.

There were a number of exceptions saved to rulings of the circuit court at the trial, but we shall notice only those points referred to in the brief of counsel.

The first contention is that there was a misjoinder of actions. But this is clearly not tenable, for the two causes of actions sued on arose on contracts, and each of them affected all the parties to the action, and under our statute could be joined. Kirby's Digest, § 6079.

The next contention is that Mrs. Kittrell could not bring this action for the reason that she was not a party to the contract with the Lumber Company. But the suit was brought in the name of W. E. Kittrell for the use and benefit of Mrs. Kittrell. As the contract was made in the name of W. E. Kittrell, he had the right to bring the action in his own name, even though it was for the benefit of his wife. Kirby's Digest, § 6002. His stating that the action was for the use and benefit of Mrs. Kittrell did not affects the rights of the defendant company, nor prejudice it in any way, and furnishes no ground to reverse the judgment.

It is true, as counsel for appellant says, that in an action against a principal the declarations or admissions of the agent are not competent to prove the agency, but this rule does not refer to the testimony of the agent hut to his unsworn declarations. An agency may be established by the testimony of an agent, as well as that of any other witness who has knowledge of the facts. The testimony of Kittrell that his wife was the owner of the planing mill and interested in the contract was not contradicted, and it was therefore not improper to make her a party, though, as before stated, it was not necessary.

The circuit judge instructed the jury that, if the defendant could have furnished a sufficient quantity of lumber to have kept the planing mill plant of plaintiff running at its full capacity, and failed to do so, the plaintiff was entitled to recover...