Blodgett Construction Company v. Watkins Lumber Company

• Decision Date: 02 April 1923
• Docket Number: 269
• Citation: 249 S.W. 574,158 Ark. 75
• Parties: BLODGETT CONSTRUCTION COMPANY v. WATKINS LUMBER COMPANY
• Court: Arkansas Supreme Court

249 S.W. 574

158 Ark. 75

BLODGETT CONSTRUCTION COMPANY
v.
WATKINS LUMBER COMPANY

No. 269

Supreme Court of Arkansas

April 2, 1923

Appeal from Polk Circuit Court; James S. Steel, Judge; reversed.

Judgment reversed and cause dismissed.

Norwood & Alley, for appellant.

The court erred in refusing to instruct a verdict for appellant. If there was a contract of sale it was within the statute of frauds, not being in writing. Sec. 4864, Crawford & Moses' Digest. Hamilton v. Fawlkes, 16 Ark. 340; St. L. I. M. & S. Ry. v. Bendler, 45 Ark. 17; Ft. Smith v. Brazon, 49 Ark. 306. Neither was there any mutuality of obligation in the alleged contract. 1 Parsons on Contracts, 486. Hammon on Contracts, 682. Court erred in refusing to allow appellant to show appellee failed to minimize his damage. McGehee v. Yunker & Ronk, 137 Ark. 397. Also in giving appellee's requested instructions 1 and 2, there being no evidence on which to base them. L. R. & F. S. Ry. v. Trotter, 37 Ark. 593; Frank v. Dungan, 76 Ark. 599; Huddleston, v. St. L. I. M. & S. Ry. Co., 88 Ark. 445; Short v. Johnson, 89 Ark. 279; Johnson v. Pennington, 105 Ark. 278; Emmerson v. Turner, 95 Ark. 597; Sadler v. Sadler, 16 Ark. 628; Burke v. Snell, 42 Ark. 57. The question of whether the alleged contract was within the statute of frauds should have been submitted under appellant's refused request for instructions 3, 4 and 6. Grady v. Dierks Lumber Co., 149 Ark. 306; Arkadelphia Milling Company v. Green, 142 Ark. 565; Tyson v. Horsley, 141 Ark. 545; Neal v. Brandon, 70 Ark. 79; Summers v. Wood, 131 Ark. 345; Pekin Cooperage Co. v. Wilson, 148 Ark. 654. Judgment should be reversed and cause dismissed. St. L. I. M. & S. Ry. Co. v. Humbert, 101 Ark. 532; Arkansas Cotton Oil Co. v. Carr, 89 Ark. 50; Marshall Bank v. Turney, 105 Ark. 116.

McPhetridge & Martin, for appellee.

The acceptance of the quotations as offered by appellee consummated a contract. 96 Ark. 184; 90 Ark. 504; 100 Ark. 51; 1 Elliott on Contracts, 25. Offer and acceptance were in writing, and constituted a contract not within the statute of frauds. 1 Elliott on Contracts, sec. 44; § 4886, Crawford & Moses' Digest. No error in refusing appellant's requested instructions. Construction of a contract is for the court, not the jury. 75 Ark. 162; 52 Ark. 55; 95 Ark. 272; 20 Ark. 583; 67 Ark. 553; 101 Ark. 353; 78 Ark. 574; Mann v. Urquhart, 89 Ark. 230.

OPINION [249 S.W. 575]

[158 Ark. 76] WOOD, J.

This action was instituted by the Watkins Lumber Company, a partnership (hereafter called appellee), against A. M. Blodgett, doing business as Blodgett Construction Company (hereafter called appellant). The appellee alleged in its complaint that it entered into an oral contract with the appellant by which it was to furnish appellant not less than fifty and probably sixty thousand feet of pine lumber. Among other things appellee alleged that, at the request of appellant, it, on the 22nd day of March, 1920, submitted in writing to appellant a price list or offer to furnish the timber and lumber as follows: "We agree to furnish 3x6 and wider post and whiteoak bridge plank at mill in Mena, Arkansas, at $ 60 per M, B.M., and mixed oak at $ 55, less all No. Grade, 1x6 No. 1 $ 60; No. 2 $ 55; 2x4 No. 1 $ 55; No. 2 $ 50. This offer good for ten days only."

[158 Ark. 77] That the appellant delivered to the appellee his acceptance of the above offer in writing, which is as follows: "Referring to your quotation of March 22, of $ 60 for 1,000 B.M. post whiteoak bridge plank, $ 55 for 1,000 B.M. for mixed bridge plank, all 3x6 and wider, 16 feet long. $ 60 for 1,000 ft. B.M. No. 1 1x6; $ 55 for 1,000 ft. B.M. No. 2 1x6; $ 50 for 1,000 ft. B.M. No. 2 2x4. We hereby accept the above quotations, and will specify the sizes and quantities required at an early date."

That appellant agreed to purchase the timber according to the offer and acceptance thereof. Appellee further alleged that, on the 4th of October, 1920, the appellant received of the appellee a small portion of lumber so purchased under the contract, amounting to the sum of $...