Brown & Hackney, Inc. v. Loveless

• Decision Date: 13 March 1922
• Docket Number: 221
• Citation: 239 S.W. 21,152 Ark. 540
• Parties: BROWN & HACKNEY, INC., v. LOVELESS
• Court: Arkansas Supreme Court

239 S.W. 21

152 Ark. 540

BROWN & HACKNEY, INC., v. LOVELESS

No. 221

Supreme Court of Arkansas

March 13, 1922

Appeal from White Circuit Court, J. M. Jackson, Judge; affirmed.

STATEMENT OF FACTS.

This was an action in replevin by W. J. Loveless and A. C McGregor, doing business under the firm name of W. J Loveless Veneer Company, against J. B. Bridgeman, to recover 30,000 feet of gum and cypress logs. The defendant denied ownership of the logs in the plaintiffs, and averred ownership in himself.

Brown & Hackney, Inc., filed an interplea in which it claimed that it had title to the 30,000 feet of gum and cypress logs in question, and was entitled to the possession thereof.

After all the parties had announced ready for trial, the plaintiffs, through their attorneys, obtained leave of the court to file a cross-complaint against Brown & Hackney Inc., for $ 400.

According to the testimony of W. J. Loveless, he lived at Cotton Plant Ark., and he and Asa McGregor ran a veneer mill in the name of Loveless Veneer Company. The Loveless Veneer Company bought the timber on 80 acres of land in White County, Ark and paid $ 600 for it. The firm employed the defendant, Bridgeman, to cut the timber for it under a verbal contract to give him $ 16 per thousand for cutting, hauling and loading the timber on the cars at Worden's spur. The plaintiffs did not sell, or authorize any one else to sell, the timber to Bridgeman. The plaintiffs advanced Bridgeman $ 825 to pay for labor in getting out the logs. Bridgeman shipped about 30,000 feet of logs to Brown & Hackney, Inc., and paid the plaintiffs $ 1,000 of the purchase price he received for the logs from Brown & Hackney, Inc. The plaintiffs did not know anything about the sale, and did not authorize Bridgeman to make the sale. After the replevin suit was instituted against Bridgeman by the plaintiffs, the latter took possession of the logs at Worden's spur.

According to the testimony of J. B. Bridgeman, he first learned of a tract of timber being for sale, and asked W. J. Loveless to furnish him the money with which to buy it. Loveless sent an agent to look over the timber, and, after the agent reported to him his estimate of the amount of timber, Loveless told Bridgeman that he would furnish the money with which to buy the timber, provided the deed was made to the Loveless Veneer Company, and that they would pay Bridgeman $ 40 per thousand for the logs loaded on the cars until they got their money back. After Bridgeman had cut some of the timber, an agent of the plaintiffs came up and examined the logs. He told Bridgeman that the logs were not good veneer logs, and authorized him to sell the logs to some one else. There were something over 20,000 feet of logs cut at that time. Bridgeman, by a verbal contract, sold to Brown & Hackney, Inc., 52,000 feet of logs off of the 80 acres of land in question for $ 40 per thousand. He delivered to Brown & Hackney, Inc., about 30,000 feet of logs and received pay for them. He then paid the plaintiffs $ 1,000. This left about 23,000 feet of logs at the spur, and this amount of logs was taken possession of by the plaintiffs in the replevin suit before Bridgeman delivered them to Brown & Hackney, Inc. Bridgeman told Loveless, when he sent him the $ 1,000, that as soon as he could load out the logs he would send him the balance of the money. Loveless accepted the check for the $ 1,000 and said that that was all right. Loveless gave Bridgeman permission to sell the logs to Brown & Hackney, Inc.

The evidence shows that the logs have become rotten and are worthless now. They were seized by the plaintiffs under their writ of replevin.

The jury returned a verdict as follows: "We the jury find for the plaintiffs for the possession of the logs in controversy, and the interveners are not liable for damages asked for by the plaintiffs."

Judgment was accordingly entered in favor of the plaintiffs against the defendant, Bridgeman, for the possession of 30,000 feet of gum and cypress logs.

It was further ordered by the court that the cause be dismissed as to Brown & Hackney, Inc. Brown & Hackney, Inc., alone has appealed to this court.

Judgment affirmed.

Brundidge & Neelly, for appellant.

1. There was ample time in which plaintiffs might have filed their cross-complaint and put appellant on notice, from the time it filed its intervention to the time the case was called for trial. The filing of the cross-complaint after the jury was impaneled came in the nature of a surprise and appellant was entitled to a continuance. 67 Ark. 144; 75 Id. 468; 103 Id. 83.

2. Instructions numbered 2 and 5, upon the question of ratification, requested by the intervener, ought to have been given. Whether the plaintiffs authorized the sale or not, after Bridgman told them he had sold it and they accepted the money as part payment, that was a ratification. 124 Ark. 364; 137 Id. 534; 54 Id. 220; 96 Id. 510.

John E. Miller and C. E. Yingling, for appellees.

1. There is no showing in the record that there was any abuse of discretion in refusing the continuance. 93 Ark. 119, 123; 40 Id. 114; 94 Id. 430. Neither does it appear that any prejudice resulted. 112 Ark. 507; 137 Id. 387; 88 Id. 185; 113 Id. 83. If error was committed, it was cured by the verdict. 72 Ark. 316; 101 Id. 424; 95 Id. 209.

2. Appellant's requested instructions 2 and 5 were not justified by the facts in the case. The suit does not involve the logs actually purchased by appellant and for which it paid Bridgeman, but only the ownership of the logs which the latter had not succeeded in delivering to any one. On the question of ratification, see 21 R. C. L. 923, § 101; 78 N.J.L. 637; 76 A. 1024; 136 Am. St. 627; 107 Va. 368; 13 Ann. Cas. 277; 66 Ark. 10; 55 Id. 423; 21 R. C. L. 928; § 106; 40 La. A., 87; 8 Am. St. 512; Ann. Cas. 1916-A, 183

OPINION

HART, J., (after stating the facts).

The court submitted to the jury the issue of fact between the plaintiffs and the defendant, Bridgeman, as to the ownership of the logs. The jury returned a verdict for the plaintiffs, and, no appeal having been taken from the judgment rendered, the issue of ownership of the logs as between the plaintiffs and Bridgeman is not involved in this appeal.

Counsel for Brown & Hackney, Inc., assign as error the refusal of the court to give instructions number 2 and 5, which are as follows:

"2. The jury are instructed that if the plaintiffs, or either of them, knew of the sale of said logs made by Bridgeman to Brown & Hackney, Inc., and accepted the payments made by them, then they would be held to have ratified said sale, and your verdict will be for the interveners for the value of logs in controversy."

"5. The jury are instructed that if you find from the testimony in this case that the defendant, Bridgeman, notified plaintiffs, or either of them, that he had sold logs from the land in controversy to...