Blodgett Construction Company v. Watkins Lumber Company

• Decision Date: 02 April 1923
• Docket Number: 269
• Citation: Blodgett Construction Company v. Watkins Lumber Company, 249 S.W. 574, 158 Ark. 75 (Ark. 1923)
• 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

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."

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 $ 47.40, and paid the appellee therefor, in accordance with the agreement, but it thereafter refused to accept any more lumber, notwithstanding the appellee at all times was able, ready and willing to carry out the agreement on its part, and urged that the appellant do so; that the appellant, in refusing to receive and pay for the lumber in violation of his contract, had damaged the appellee in the sum of $ 4,000, for which it prayed judgment.

The appellant, in his answer, denied all the material allegations of the complaint, and alleged that the contract, if made at all, was an oral agreement, and the same being for more than $ 30, and being for the sale of goods, wares and merchandise, was void because there was no note or memorandum signed by the appellant; that no part of the goods had been accepted under the alleged contract, and that no payment had been made to bind the bargain. He therefore pleaded the statute of frauds as a defense to appellee's action.

W. E. Watkins, witness for the appellee, testified that one Yingling, who represented the appellant, called at the office of the appellee in the early part of 1920 and stated that the appellant had the contract for the building of bridges and culverts on the Jefferson Highway, and asked witness what he would furnish the stuff for. Yingling told witness about what the stuff would be. Witness replied that it would take a little time to get up the prices, and he submitted to the appellant the proposition in writing. (Here the writing of March 22, 1920, supra, from the appellee to the appellant, was indentified and introduced in evidence). Witness stated that he received a reply to the proposition made, and he identified the writing of March 29, supra, and introduced the same in evidence. Witness further testified that in their negotiation Yingling said that he couldn't state exactly the quantity of material that would be required for the work, but that it would not be less than fifty and perhaps not more than sixty thousand feet of pine lumber and sixty thousand feet of oak lumber; that the quotations contained in the writing embraced both pine and oak. The appellant thereafter ordered and the appellee furnished a small amount of lumber, the bill for which was identified by the witness and introduced in evidence, as follows:

"Mena, Ark., 10-4-1920.

"M. Blodgett Con. Co., in account with Watkins Lumber Company.

10

2x6 16 No. 1

$ 9.60

59

1x6 16 No. 1

28.32

6

1x6 10 No. 1

1.80

9

1x6 14 No. 1

3.87

1x6 10 No. 1

.30

1x6 12 No. 1

.72

12

1x4 12 No.

2.88

$ 47.40

"Paid 11-4-1920."

Witness stated that the lumber evidenced by the above bill was furnished by the appellee to the appellant and accepted and paid for under the contract. The above was the only order appellee received and filled under the contract. The appellant proposed to construct the bridges and culverts of the Jefferson Highway, a distance of forty-nine miles. The witness then testified as to the damage that appellee sustained by reason of the failure of appellant to comply with the alleged contract, which testimony, in view of the conclusion we have reached as to the contract, it becomes unnecessary to set forth.

On cross-examination the witness stated that the only writings they had entered into were the writings introduced in evidence in which appellee quoted appellant prices on certain lumber and bridge material. Appellant accepted those quotations, and witness thought he made it a completed contract. After that, in October some of the same kind of material that was specified in the quotations was ordered and furnished, but all of it was not that kind of stuff. It was not a written order, but the foreman of appellant came and got the stuff, and appellee afterwards paid for it and made out a statement of the amount furnished. Witness was asked this question: "You didn't enter into a definite agreement as to just how much lumber would be used?" and answered, "No, except the fifty to sixty thousand feet. He made that statement himself. If he had said fifty thousand feet, that would have been an estimate, but he said fifty to sixty thousand feet. He said they would need from fifty to sixty thousand feet of each kind."

Witness further testified that he quoted appellant exactly the sizes it asked for. Witness wrote them down at the time. He could not quote the prices at the time because he didn't know just exactly what they would be. The witness was further asked why he didn't suggest the quantity from fifty to sixty thousand feet in his communication to appellant, and answered: "I didn't think there was any reason for it. I had implicit confidence in Yingling and Blodgett Construction Company, and I had no idea but what they would carry out their contract with me. I don't know that I would have asked a written contract if they hadn't done that." This writing here is the only written contract witness had. The figures made in the writing were based partially on the amount of lumber that Yingling had given witness that would be required to do their work on the highway. Witness would not have sold appellant a retail bill at that price.

Yingling testified, as a witness for the appellant, substantially as follows: He was in charge of the work for the appellant, and had a controversy with Watkins in the early part of March 1920. At that time the appellant was bidding for the construction of the bridges on the Jefferson Highway, and asked Watkins for a quotation on lumber, and told him appellant was bidding on the bridges, and either had, or expected to have, a contract for the bridge work. Appellant would need a considerable amount of lumber, both oak and pine. He described the lumber to Watkins, and asked him...