Beeson-Moore Stave Company v. Brewer & Story

• Decision Date: 30 April 1923
• Docket Number: 347
• Parties: BEESON-MOORE STAVE COMPANY v. BREWER & STORY
• Court: Arkansas Supreme Court

250 S.W. 518

158 Ark. 512

BEESON-MOORE STAVE COMPANY v. BREWER & STORY

No. 347

Supreme Court of Arkansas

April 30, 1923

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

Decree affirmed.

Mehaffy Donham & Mehaffy, for appellant.

No liability under contract between appellees and Mabry & Son which was not included in sale to appellant nor assigned to it. Sec. 481, C. & M. Digest; 2 R. C. L. 625. Nor was there a breach of contract by appellant. There was an accord and satisfaction of all claims of appellees. 148 Ark. 512. Appellees not entitled in any event to recover for staves left in the woods, $ 1,400. Nor for the 205,000 staves never manufactured, nor for loss on timber purchased for but not made into staves, $ 2,000. There is no testimony whatever to show any loss by inspection. Decree should be reversed, and cause dismissed.

Ben B. Williamson and Rogers, Barber & Henry, for appellees.

The evidence shows that the contract between appellees and Mabry & Son was fully performed by them and appellant. Contract was breached by appellant's failure to make advances in accordance with its terms. There was no accord and satisfaction. 1 Words & Phrases, 44; 141 Mo.App. 5, 121 S.W 774; 148 Ark. 658; 129 Ark. 82.

OPINION

HUMPHREYS, J.

Appellees instituted suit against appellant in the chancery court of Stone County to recover $ 10,550, growing out of alleged breaches of contract for the sale and purchase of 800,000 white oak staves. It was charged in the bill that appellant failed to make advancements upon 35,000 staves manufactured in the woods, or to properly inspect others at shipping points. The items of damage alleged were $ 6,150 profit on 205,000 staves, $ 1,400 cost of manufacturing 35,000 staves left in the woods, $ 2,000 on timber purchased to make 205,000 staves, and $ 1,000 resulting from wrongful inspection.

Appellant filed an answer denying the material allegations of the bill, and pleaded the statute of frauds in defense of the contract existing between appellees and Mabry & Son on January 14, 1920.

The case was submitted to the court upon the pleadings and testimony, which resulted in a judgment in favor of appellees for $ 6,150, from which is this appeal. The record reflects the following summary of facts: On the 14th day of January, 1920, appellees entered into a written contract with H. S. Mabry & Son to make and deliver to them, before January 1, 1921, at designated points 300,000 white oak staves of certain dimensions at fixed prices. The contract contained a provision for an advance of $ 50 per 1,000 pieces, made, bucked and stacked on yard in the woods, and for inspection "mill run, culls out," at shipping point, and for payment in full when on board cars ready for shipment. On the 7th day of February, 1920, H. S. Mabry & Son sold their entire stave mill business, including three mills, equipment and commissaries at different places on the Missouri Pacific and North Arkansas railroads. Among the assets transferred by Mabry & Son to appellant was an account of $ 1,200 advanced by Mabry & Son to appellees on the stave contract of date January 14, 1920. After the sale of the Mabry stave business to appellant, advances were made by it to appellee, and a large number of staves were delivered and received under the stave contract aforesaid prior and up to July 10, 1920. On that date 153,000 staves had been delivered and paid for, and the balance were made up in the woods. Appellant had made advances on those in the woods. On July 10, 1920, appellees entered into a written contract with appellant to make and deliver to it, at designated shipping points, 500,000 white oak staves of certain dimensions, at fixed prices. This contract contained the same clauses with reference to advances and inspection contained in the contract of January 14, 1920. The latter contract was a copy of the first contract, except names and amounts. The testimony is conflicting as to whether the last contract was for 500,000 additional staves or whether it included the 147,000 staves in the woods upon which appellant had already made advances. After the contract in July was executed, appellees delivered about 370,000 staves to appellant, making a total of about 595,000 delivered by them to it. Deliveries and shipments ceased in March, 1921. Disputes arose between the parties as to the manner of inspection and concerning advances upon staves in the woods. On January 28, 1921, appellant wrote appellees the following letter:

"Little Rock, Arkansas, January 28, 1921.

"Brewer & Storey, Mountain View, Ark.

"Gentlemen: Our Mr. Hurt has just come and told us that you would not accept inspection that he put on the staves and load them out, which is quite a surprise to us. We are going to put an association man on these staves and see whether Mr. Hurt is right or wrong in regard to culls, and then, if you do not want to accept the association man's inspection, I suppose there is no other way to settle this except through legal proceedings. We are certainly going to have staves clear from this date on. In regard to advance, your contract calls for $ 50 advance in the woods, which of course we have not given you, as I do not know that you particularly asked for it. We could not advance on these when you refused to take our inspection. Another thing, too, I do not see any use of making advance when staves are on the R. R. We told you we would pay for them as fast as they were loaded in cars and the doors sealed, but will not make advances on the staves on the R. R. under the present conditions.

"Yours very truly,

"BEESON-MOORE STAVE COMPANY,

"By E. W. Beeson, President."

Beeson and Storey met at Sylamore in February and had quite a wrangle over the inspection. Beeson insisted upon and enforced the letter of the contract relating to inspection. It seems that Mabry and their inspectors had accepted the lots of staves theretofore delivered when they did not contain more than six per cent. culls. Beeson's claim under the contract, was that the staves should be free from culls. Brewer and Storey both testified that they demanded advances on staves which they had manufactured in the woods, and, being unable to get the advances, shipped...