Byrd v. Baker-Matthews Lumber Co.

• Decision Date: 16 May 1921
• Docket Number: 334
• Citation: 230 S.W. 584,148 Ark. 576
• Parties: BYRD v. BAKER-MATTHEWS LUMBER COMPANY
• Court: Arkansas Supreme Court

230 S.W. 584

148 Ark. 576

BYRD v. BAKER-MATTHEWS LUMBER COMPANY

No. 334

Supreme Court of Arkansas

May 16, 1921

Appeal from Craighead Circuit Court, Lake City District; R. H Dudley, Judge; affirmed.

Judgment affirmed.

Hawthorne & Hawthorne and A. P. Patton, for appellants.

Under the written contract, title to the lumber levied on did not pass to appellee until all the conditions in the contract had been performed, and for that reason the execution lien of A B. Jones Company took precedence over the claim of appellee.

Title to property does not pass until it has been inspected, where there is a provision in the contract providing for inspection. 72 Ark. 141; 83 Id. 395; 49 Id. 86; 65 Id. 33; 50 L. R. A. (N. S.) 111; 36 N.J.L 449; 106 U.S. 505; 37 Pa.St. 187; 72 Miss. 809.

The undisputed testimony shows that the sheriff attached only such lumber as was manufactured and stacked after the execution came into his hands, as he did not attach any lumber that was inspected and marked "Property of Baker-Mathews Lumber Company."

Lamb & Frierson, for appellee.

This case was tried by the court sitting as a jury, by consent of parties, and its findings have all the force and effect and are as conclusive as the findings of a jury and verdict thereon. 60 Ark. 250. The contract for the sale of the lumber was executed and not executory. The sale was complete. 141 Ark. 393-404. The title passed. 20 N.E. 270; 120 N.W. 572. The question of intention as to delivery governs. In case of bulky articles or ponderous ones, actual delivery is not necessary, but constructive delivery is sufficient, which is governed by the intention of the parties. 24 R. C. L. 56; 104 Ark. 344; 30 L. R. A. (N. S.) 461. 104 Ark. 344, is sustained by many Arkansas cases and cites them. Another strong circumstance indicating delivery is the fact that the lumber was stacked or proper leased to appellee. 24 R. C. L. 57, § 321, and cases cited. 141 Ark. 393. 404; 100 U.S. 124; 103 Ark. 331; 112 Id. 63; 81 Id. 373; 116 F. 261; 100 U.S. 124.

The findings of the court are clear, positive and convincing, and are sustained by uncontradicted evidence and should be sustained.

OPINION

HUMPHREYS, J.

Appellee instituted suit in replevin against appellants in the Craighead Circuit Court, Lake City District, to recover the possession of forty-two stacks and 50,000 feet of loose lumber, situated at Rhoads Bros. & Co. 's sawmill, about two miles from Black Oak, in said county, claiming to be the owner thereof, which lumber was seized on the first day of April, 1920, by appellant, the sheriff of the county, under an execution issued on a judgment of A. B. Jones Company against Rhoads Bros. & Co. and placed in his hands on the 10th day of March, 1920.

Appellants filed answer, denying that appellee was the owner of the lumber seized, and asserting its right to retain and sell same to satisfy the judgment obtained in said court at the January term in the sum of $ 2,505.43 in favor of A. B. Jones Company against J. T. and W. M. Rhoads, constituting the firm of Rhoads Bros. & Co.

The cause was submitted to the court sitting as a jury, upon the pleadings and evidence, which resulted in a verdict and judgment in favor of appellee for the possession of the lumber seized by appellants under the execution aforesaid, or $ 5,000, its value. From that judgment an appeal has been duly prosecuted to this court.

The facts, as disclosed by the record, necessary to a determination of the issue involved on this appeal, are as follows: On or about May 12, 1919, appellee procured a lumber manufacturing contract from L. D. Leach & Co. with Rhoads Bros. & Co. for a cash payment of. $ 10,000 and the future delivery of a certain amount of lumber. At the time the manufacturing contract was procured, it obtained title to 800,000 feet of lumber on the mill yard of Rhoads Bros. & Co. On the same day, to-wit. May 12, 1919, appellee entered into a manufacturing contract with Rhoads Bros. & Co. and advanced the firm six or seven thousand dollars in cash on lumber to be thereafter manufactured. The written manufacturing contract, omitting the prices of the different sizes and kinds of lumber, is as follows:

"This memorandum and agreement, made and entered into this the 12th day of May, 1919, by and between Rhoads Bros. & Co., a copartnership composed of J. T. Rhoads of Jonesboro Arkansas, and W. W. Rhoads of Cape Girardeau, Missouri, with offices, at Black Oak, Arkansas, hereinafter known as party of the first part, and Baker-Matthews Lumber Company, a corporation under and existing by virtue of the laws of Missouri, hereinafter known as the party of the second part, witnesseth:

"Party of the first part agrees to sell, and does sell, and the party of the second part agrees to buy, and does buy, the lumber hereinafter described and specified, subject to the prices, terms, provisions and conditions hereinafter specified, to-wit, two million two hundred and fifty thousand feet of red and tupelo gum, oak, elm, maple, cypress, ash, cottonwood, tupelo and sycamore lumber, at the following prices: * * *

"All of No. 3 common which develops with lumber covered by this contract.

"It is understood that the price on the No. 3 common which develops in furnishing the above stock is to be $ 10 per thousand.

"The above prices are for delivery f. o. b. cars at Black Oak, Arkansas.

"It is understood that the red and sap gum is to be separated in loading, but it is further understood that, in the event said second parties require the sap gum to be sorted and shipped in straight cars of each grade, that they are to allow said first parties an additional $ 1 per thousand covering the cost of sorting.

"It is understood that there is approximately 800 M' of the various kinds of lumber above described on the mill yard of the parties of the first part at the present time, which is included in this contract and which is subject to all of the terms and provisions herein specified.

"This lumber shall be settled for by crediting the price of the same less 2 per cent., by the second party, against advances made, as herein provided, and any balance shall be accounted for and paid to the first party at the final discharge of this contract.

"It is further understood and agreed that all lumber applying on this contract is to be manufactured in a first-class, workmanship manner, and to be equalized and trimmed and to be of sufficient thickness when dry so that the thicknesses will be standard, as provided by the regulations and rules of the National Hardwood Lumber Association.

"It is further understood that all lengths are to be piled separate, in piles not more than six feet in width, and at least three feet apart, and of sufficient pitch so as to insure the best results in drying. The twelve-foot piles are to have five sticks to the layer, and the fourteen feet and sixteen feet piles are to have six sticks to the layer, and the sticks are to be placed directly over each other in the pile, so that the lumber will dry out straight. All lumber is to be piled on good solid foundation twelve inches from the ground in the lowest place, the heads of the twelve-foot piles to be twelve inches higher than the tails of same. Heads of fourteen-foot and sixteen-foot piles to be twenty inches higher than the tails of same, the lumber to be piled loose in the piles so as to leave plenty of room for the circulation of air through the pile, all piles to be properly covered by said parties of the first part when completed.

"All lumber applying on this contract to be piled not less than 200 feet from the sawmill or other surrounding buildings, brush, or anything that would invalidate the 200 feet clear space clause provided in the insurance policies, and said parties of the first part further agree to at all times maintain said 200-foot clear space.

"It is understood and agreed that said parties of the first part are to lease, and do hereby lease, to parties of the second part the ground on which the lumber applying on this contract is piled, or to be piled.

"It is further understood and agreed that, when said first parties have complied with all of the terms and conditions of this contract, preliminary thereto and herebefore and hereafter provided, parties of the second part are to advance on the first and fifteenth of each month, for lumber put in pile during the preceding two weeks, $ 17 per thousand feet the balance of the...