Claypool v. Johnston
| Decision Date | 11 October 1909 |
| Parties | CLAYPOOL v. JOHNSTON |
| Court | Arkansas Supreme Court |
Appeal from Logan Chancery Court, Northern District; J. Virgil Bourland, Chancellor; affirmed.
Decree affirmed.
Robert J. White, for appellant.
1. The court's finding that the trees were worth only 50 cents each is not in accord with proof. By the decided weight of the testimony they were worth at least $ 1.00 each. His finding is persuasive only. 41 Ark. 294; 75 Ark. 75.
2. It was the master's duty under the order of reference, and so understood by the parties, to take testimony and ascertain and report the value of the trees. The decree overruling the master's finding that their value was 75 cents each, was a mere difference of opinion of the chancellor from that of the master upon a disputed question where the evidence was conflicting. The master's report should stand unless error is affirmatively shown in his findings. 16 Cyc. 453 subdiv. F 1; 13 How. 581; 35 F. 488; 88 F. 140; 31 C. C. A 427; 155 U.S. 631; 14 Am. & Eng. Enc. of Law, 1st Ed. 940; 8 Vt. 519. The findings of the master will neither be reviewed nor revised if there is evidence tending to sustain them unless fraud or corruption is shown. 38 Vt. 519; 120 Pa.St 98; 50 Vt. 48; 1 S.W. 884; Id. 891; 5 Ind. 422.
Anthony Hall for appellee; Jim Johnson of counsel.
1. The testimony as to a value of 50 cents and under for each tree comes from witnesses of experience who were qualified to speak as to the worth of young trees. The higher valuations were given to "healthy bearing apple trees 6 years old."
2. The contention that the master's valuation of 75 cents each could not be reviewed, and was conclusive upon the chancellor, is inconsistent with the order of reference.
The plaintiff below, Frank L. Johnston, instituted this suit against the defendant, J. C. Claypool, seeking to recover upon a note given for the balance of the purchase money of certain land. The defendant admitted the purchase of the land and the execution of the note, but alleged that the plaintiff had fraudulently induced him to purchase the land by falsely representing that at the time of the purchase there were 2,500 healthy bearing apple trees upon the land. He sought a recoupment by reason of the false representations or a rescission of the contract of sale. Upon a trial of the cause below the chancery court found "that the defendant is entitled to recoup in this action against the plaintiff the value of 1,300 bearing apple trees from 4 to 6 years old; that the testimony as to the value of said trees is insufficient for the court to find their value;" and it did order and decree "that the issues as to the deception as to the amount of trees are with the defendant, and that this cause be continued until the next term of this court, and that either party is permitted to take testimony upon the value of said trees before the clerk, who is made master for the purpose, and when such testimony shall be taken the master will make report to the next term of this court, to which this cause is continued."
At the following term of the court the master filed a report, in which he stated that he had taken the testimony of ten witnesses, which was reduced to writing and filed. He further reported that the witnesses had experience in fruit culture and that a majority of the witnesses who testified at the instance of the defendant fixed the value of the trees at one dollar each, and that a majority of the witnesses who testified at the instance of the plaintiff fixed such value at twenty-five cents each; and, "relying wholly upon the testimony, I find the value of said 1,300 apple trees to be fifty cents each, making a total of $ 650." Thereafter a motion was made to quash the depositions of certain witnesses on the ground that notice of the taking thereof had not been given, and to direct the master to take further testimony. This motion was sustained by the court. At the following term the master reported that he had taken the depositions of from 20 to 30 witnesses, which he filed. He also reported that he "would value 4 to 6 year old apple trees of all the different varieties and classes generally, diseased and otherwise, on the mountain in the vicinity of the Claypool place at 50 cents each;" that this was his former report. But that he found that the "testimony of the defendant's witnesses were taken as to the value of healthy bearing six-year old apple trees," whereas the judgment of the court provided that the defendant was entitled to recoup "the value of 1,300 bearing apple trees from 4 to 6 years old;" and that, taking the judgment of the court as a basis and considering the testimony of all the witnesses, he now finds the value of the trees to be 75 cents each, or $ 975, for the 1,300 trees.
Exceptions were filed by the plaintiff to this latter report, and these exceptions were by the court sustained. The court thereupon found "the fair and equitable value of bearing apple trees 4 to 6 years old to be 50 cents each, and that defendant is entitled to recoup $ 650 for the value of the 1,300 trees; and the court rendered a decree in accordance with that finding. From this decree the defendant prosecutes this appeal.
The only question involved in this appeal is the value of the 1,300 trees and the action of the chancery court in finding that value. That court has the power within its sound discretion to appoint a master for the purpose of assisting it in the proceedings before it, as for example to take testimony or to state accounts, etc., and this power is also given it by statute. 14 Cyc. 435; Kirby's Digest, § 633.
The master derives his authority from the order thus appointing him, and he has no authority other than that conferred upon him by the court, and should make no inquiry or finding beyond the matters that are expressly referred to him. The master is the representative of the court in regard to the matter thus referred to him, and is wholly subject to the court's control, and should follow its orders. 17 Ency. of Pleading & Practice, 1020; 16 Cyc. 440; Kimberly v. Arms, 129 U.S. 512, 32 L.Ed. 764, 9 S.Ct. 355; 17 Ency. Pleading & Practice, 1035; Young v. Rose, 80 Ark. 513, 98 S.W. 370.
In this case the clerk was appointed master for the purpose of taking testimony as to the value of said trees and to report that evidence. The order did not direct him to determine the facts as to the issue or to report his determination of the value of the trees. In so far, therefore, as he made a report as to his finding of the value of the trees, he took an action not conferred upon him by the order. The court could have so directed him if it had seen fit to do so; and, while the court did not strike such finding from the report, but even considered it, nevertheless it did not make an order directing such finding.
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