Carr v. Fair

• Citation: 122 S.W. 659
• Parties: CARR et al. v. FAIR et al.
• Decision Date: 15 November 1909
• Court: Arkansas Supreme Court

122 S.W. 659

CARR et al. v. FAIR et al.

Supreme Court of Arkansas.

November 15, 1909.

Appeal from Mississippi Chancery Court, Chickasawba District; Edw. D. Robertson, Chancellor.

Action by J. H. Carr and others against George and S. S. Fair. A report by a master found that the plaintiffs were entitled to recover a stated amount, which amount the trial court reduced, and plaintiffs appeal. Decree reversed, and cause remanded, with directions to enter a decree for the amount found due by the master.

J. T. Coston, for appellants. W. J. Driver and Block & Kirsch, for appellees.

FRAUENTHAL, J.

The appellants instituted this suit against the appellees in the circuit court of Mississippi county for the recovery of the value of the timber which they alleged the appellees had wrongfully cut and removed from a large body of land in that county owned by the appellants. The appellees alleged in their answer that they had entered into a contract with the mother of appellants for the purchase of the timber, believing that she had a right to sell same, and had made payments thereon to her. They denied that they had cut and removed the amount of timber claimed by appellants; and, in order to obtain an accounting of the amount of said timber and the right to have the payments so made by them credited on the value thereof, they asked that the cause be transferred to the chancery court. This was done. Thereupon the parties entered into the following agreed stipulation of facts: "It is agreed and stipulated in this case that the defendants cut and removed from the lands of the plaintiffs ash, oak, cypress, elm, gum, sycamore, and cottonwood timber as follows: Ash, 2,934 feet; elm, 40,184 feet; cypress, 105,528 feet; sycamore, 222,007 feet; gum, 1,070,725 feet; oak, 477,343 feet; cottonwood, 3,499,412 feet. It is further agreed and stipulated that said timber was cut by the defendants and removed from said land each in equal quantities each year for the years 1898, 1899, 1900, 1901, 1902, and 1903. Said land was inherited by the plaintiffs from their father, J. J. Carr, who died intestate in the year 1897, and in the year 1898 Susie Carr, the mother of the plaintiffs, entered into a contract with the defendants, in which she attempted to authorize the defendants to cut and remove said timber from said land without any order of the probate court therefor; that afterwards the defendants paid the administrator of her estate and the estate of J. J. Carr the contract price agreed on by her for said timber as follows: Elm and sycamore 25 cents per 1,000 feet; cypress, gum, and cottonwood 50 cents per 1,000 feet; ash and oak $1 per 1,000 feet. And it is expressly agreed that said sums may be deducted from the actual value of said timber." Thereafter the chancery court, in order to determine the value of the timber and amount of the payments made thereon, appointed a special master to whom the matter was referred for the purpose of taking proof and stating the account between the parties. The master took the testimony of nine witnesses by depositions which were filed with his report. In his report he gave an abstract of the testimony of these witnesses; the interest of each in the litigation; the qualification of each of them to testify as experts on the subject of the market value of the timber. He gave in detail the market values placed by each witness on the various kinds of timber for each of the years during which the same was cut, and the values thereof as determined by him from this testimony. He made out a detailed statement showing the value of each kind of timber cut during each of the above years and the amount of each payment made thereon, together with interest calculated on the same to the date of his report. He found that, after allowing all payments so made, there was due to appellants the sum of $9,088.38. The appellees filed exceptions to the report on the ground that the master erred in charging "the appellees with the various values of the timber as found by him for the various years." The court thereupon heard and passed upon the report of the master upon the depositions that had been taken and filed with his report and the report itself. The court thereupon made the following findings and order upon said report and entered its decree in accordance therewith: "The court further finds that the finding of the master as to the value of the timber cut is without evidence to support it, and the first, second, third, fourth, fifth, and sixth exceptions to the master's report are therefore sustained, and the master's findings as to value set aside. The court finds, however, upon consideration of said report, that the plaintiffs are entitled to recover from the defendants principal and interest at this date $6,210.40," etc.

From the decree thus setting aside the findings of the master and entering a judgment in favor of appellants for only the above amount, and not for the amount found by the master, the appellants present this appeal. The questions presented by this appeal involve the weight that should be given to the findings of fact by a master in chancery, and to the findings of the chancellor relative thereto. In order to assist it in the proceedings pending before it — as for example to take testimony, to make findings of facts, or to state accounts, etc. — the court has the power within its sound discretion to appoint a master. When such master is appointed at the request and with the consent of the parties, and with their consent that he shall determine certain matters that shall be referred to him, he is known as a...