Carnahan v. Terrall Brothers

• Decision Date: 10 February 1919
• Citation: 209 S.W. 64,137 Ark. 407
• Parties: CARNAHAN v. TERRALL BROTHERS
• Court: Arkansas Supreme Court

209 S.W. 64

137 Ark. 407

CARNAHAN v. TERRALL BROTHERS

Supreme Court of Arkansas

February 10, 1919

Appeal from Lonoke Circuit Court; Thomas C. Trimble, Judge reversed.

STATEMENT OF FACTS.

Terrall Brothers 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 Arkansas, formed a partnership called Terrall Brothers. About the first of September, 1916, they entered into a verbal contract with the representative of the Geridge Lumber Company for the purchase of the catalpa timber on its land. They agreed to pay three cents for the small posts, and the company was to furnish thirty large posts with every car of small posts. The timber was to be paid for as each car load 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 Brothers, 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 thirty thousand 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 car load 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 them 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 Brothers 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 Brothers 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 Brothers to quit cutting the timber.

The jury returned a verdict in favor of the plaintiffs and the defendant has appealed.

Judgment reversed and cause remanded.

Chas A. Walls, for appellant.

1. The contract was clearly within the statute of frauds and the court erred in its instructions to the jury. The standing timber was real estate and there was no part performance or payment so as to take the case out of the statute. 96 Ark 98; 109 Id. 230.

2. The court also erred in its ruling as to the admission of testimony.

T. C. Trimble, Jr., and Ross Williams, for appellees.

1. Payment was not to be made until the posts were shipped or delivered. The statute of fraud does not apply. Sales of timber are sales of realty and there was part performance. 91 Ark. 292; 72 Id. 213; 55 Id. 101; 44 Id. 377. The case in 109 Ark. 230 does not apply, as the facts are different.

Notes and memoranda in writing are sufficient. 101 Ark. 551; 97 Id. 366; 86 Id. 443.

2. No marketable title was made and appellant was liable for damages. 85 Ark. 291.

The rule for damages is stated in 110 Ark. 569; 57 Id. 341 and 135 S.W. 343. Also see 91 Ark. 427; 80 Id. 228; 148 S.W. 269; 78 Ark. 336; 91 Id. 427; 95 Id. 365.

OPINION

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

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. Co. v. Saline D. Co., 118 Ark. 192, 176 S.W. 129, and cases cited. Consequently a contract for the sale of standing timber is within the meaning of the statute of frauds and must be evidenced by a contract in writing. Ives v. Atlantic and North Carolina Rd. Co. (N. C.), 142 N.C. 131, 55 S.E. 74, 9 A. & E. Ann. Cas. 188 and case note at 192; Hurley v. Hurley (Va.), 110 Va. 31, 65 S.E. 472, 18 Ann. Cas. 968, and case note at 971, and France v. Deep River Logging Co. (Wash.), 79 Wash. 336, 140 P. 361, Ann. Cas. 1916, A. 238, and case note at 243. In conformity with this principle of law, this court has held that the...