Carnahan v. Terrall Bros.
| Decision Date | 10 February 1919 |
| Docket Number | (No. 101.) |
| Citation | 209 S.W. 64 |
| Parties | CARNAHAN v. TERRALL BROS. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Lonoke County; Thos. C. Trimble, Judge.
Action by Terrall Bros, against R. Carnahan. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.
Terrall Bros. brought suit against R. Carnahan to recover damages for an alleged breach of contract in the sale of certain timber. The material facts are as follows:
Charles Terrall and George Terrall, residents of Lonoke county, Ark., formed a partnership called Terrall Bros. About the 1st of September, 1916, they entered into a verbal contract with the representative of the Geridge Lumber Company for the sale of the catalpa timber on its land. They agreed to pay three cents for the small posts, and the company was to furnish 30 large posts with every car of small posts. The timber was to be paid for as each carload of posts was cut and removed from the land. A corporation, of which R. Carnahan was the representative, had a mortgage on the land on which the timber was situated. The mortgage was foreclosed, and Carnahan became the purchaser of the land at the foreclosure sale.
According to the testimony of Terrall Bros., Carnahan came to them and made the same agreement with them with regard to the sale of the timber as they had made with the Geridge Lumber Company. They bought the catalpa timber on about 30,000 acres of land. They did not know where the lines were or on what acres the catalpa timber was situated. Carnahan agreed to furnish them a man to show them the lines and where to cut the timber. They commenced cutting the timber on the land pointed out by Carnahan's agent, and continued to do so for more than two months, paying Carnahan for the timber as they got out each carload of posts. They were to have all of the year 1917 in which to get out the posts. On the 20th day of February, 1917, Carnahan stopped then from cutting any more timber. The profits they would have made had they been permitted to cut all of the catalpa timber would have amounted to more than $1,141, the amount for which the jury returned a verdict against Carnahan in their favor.
According to the testimony of Carnahan, he went to see the Terrall Bros. while they were cutting the posts off of the land under their contract with the Geridge Lumber Company. He told them that his corporation had a mortgage on the land on which the timber was situated, and agreed with Terrall Bros. that they might continue to cut the posts under their contract with the Geridge Lumber Company until after the land was sold under the proceedings to foreclose the mortgage. He bought the land in at the foreclosure sale, and then notified Terrall Bros. to quit cutting the timber.
The jury returned a verdict in favor of the plaintiffs, and the defendant has appealed.
Chas. A. Walls, of Lonoke, for appellant.
T. C. Trimble, Jr., and Ross Williams, both of Lonoke, for appellees.
HART, J. (after stating the facts as above).
In order to defeat the action against him the defendant interposed a plea of the statute of frauds. The court erred in not directing a verdict for the defendant at his request on the ground that there had not been the requisite part performance to take the case out of the operation of the statute of frauds. A sale of growing trees is a sale of an interest in land. Graysonia-Nashville Lbr....
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