Cleveland-McLeod Lumber Co. v. Hopson

• Decision Date: 12 December 1910
• Citation: 133 S.W. 823,97 Ark. 109
• Parties: CLEVELAND-MCLEOD LUMBER COMPANY v. HOPSON
• Court: Arkansas Supreme Court

133 S.W. 823

97 Ark. 109

CLEVELAND-MCLEOD LUMBER COMPANY v. HOPSON

Supreme Court of Arkansas

December 12, 1910

Appeal from Sevier Circuit Court; James S. Steel, Judge; modified and affirmed.

Judgment affirmed.

Otis T Wingo, for appellant.

J. S Lake, for appellee.

MCCULLOCH C. J. KIRBY, J., dissenting.

OPINION

MCCULLOCH, C. J.

Plaintiff, W. C. Hopson, contracted in writing with the defendant, Cleveland-McLeod Lumber Company, to furnish saw timber to the latter at its mill "one million feet or more, up to one and one-half million feet, during the 15 months following August 1, 1907, in the following proportions: 50 per cent. pine, 25 per cent. oak and cypress and 25 per cent. gum." Further stipulations of the contract read as follows:

"The timber is to be put on our road, each kind of timber on skids or in piles to itself. This means that the oak, gum and pine are not to be mixed, the logs are all to be scaled merchantable, between the barks, with the usual methods; allowance for defective or crooked logs to be made in the scale. Price to be $ 7 for merchantable pine logs; $ 8 for No. 1 oak and cypress; $ 6 for No. 2 oak and cypress logs, and $ 6 for merchantable gum."

Plaintiff delivered a considerable quantity of the timber specified in the contract up to July 1, 1908, which was fully paid for, and there is no controversy as to that. He delivered further quantities of timber after the above-named date, which he claims have not been paid for in full, and he instituted this action against defendant to recover the amount of balance alleged to be due on account of timber delivered, and also to recover damages alleged to have been sustained by reason of a breach of the contract by defendant in refusing to permit plaintiff to furnish the full quantity of timber called for in the contract. During the progress of the trial it developed from plaintiff's own testimony that he had expressly agreed to release defendant from its obligation to accept any more timber, and the cause of action on account of timber not accepted was abandoned, thus eliminating that feature of the case.

In the other paragraphs of the complaint, plaintiff claimed $ 107.52 balance for timber furnished under oral contract, and $ 508.01 balance for timber furnished under the written contract. Defendant filed an answer and counterclaim, denying all the allegations of the complaint as to balances due, and alleging that plaintiff had wrongfully taken timber belonging to defendant of the value of $ 1,200 and delivered it under the contract. The jury returned a verdict in favor of plaintiff for $ 609.48. Judgment was rendered for that amount, and defendant appealed.

The jury in arriving at the verdict accepted the precise figures given by plaintiff in his testimony as to the amount due. The items are as follows:

Pine timber at $ 7 per M in excess of quantity credited,

$ 92.30

Difference in scale of hickory timber

13.90

Difference in scale of pine at $ 3 per M hauled under

oral contract

93.62

Difference in scale of oak

9.64

Items wrongfully charged against plaintiff on defendant's

books for damaged timber furnished

400.00

$ 609.52

The principal controversy was as to the item of $ 400 for damaged timber. This was on a lot of timber which had been blown down in a cyclone, but which defendant agreed to accept. It was credited to plaintiff on defendant's books at the contract price of $ 7 per thousand feet according to the log scale made by defendant's employees, and subsequently defendant charged back against plaintiff said sum of $ 400 as estimated damages to the timber, claiming the right to do this under express agreement with plaintiff.

Plaintiff testified that he and defendant's representative, G. W Cleveland, made an agreement that, in consideration of his releasing defendant from any obligation to take any more timber, he (plaintiff) could deliver the cyclone timber to the defendant under the contract at the price of $ 7 per thousand feet stipulated in the contract. Cleveland testified that he agreed to accept the cyclone timber and credit the price to plaintiff, but that the damage to the timber should be estimated after it was sawed, and the amount of damages deducted from the contract price. Here is his statement on that subject: "A. Yes, sir; I told him to go ahead and deliver the timber all right, but I said that we would get at the damage to the timber after it was sawed. That is what I said. Q. You say that in this conversation it was agreed between you and Mr. Hopson that an estimate of the damages to the logs should be kept by you as the logs were being sawed up and made into lumber? A. Yes, sir; that is the way I understood the wind-up of our conversation; that I was to keep a record of the damage and settle on that basis. "

He stated further that, after the damaged timber had been sawed, he made a settlement with plaintiff as to the amount, in which they agreed on an estimate of 200,000 feet of timber damaged to the extent of $ 2 per thousand feet, making a total of $ 400, and that in the presence of plaintiff, and without any objection from the latter, he instructed his bookkeeper to charge plaintiff back with the item of damage. Each party denied the statements of the other, thus making a sharp conflict in the testimony. They both agreed, however, that the damaged timber was to be delivered and accepted. The jury settled the conflict in favor of plaintiff's version of the agreement.

The first assignment of error argued here is that the plaintiff was permitted to testify as to an oral agreement concerning the cyclone timber, thus shifting his position, as it is claimed, and introducing into the trial an issue not raised by the pleadings. We do not think this testimony introduced a new issue not raised by the pleadings. Plaintiff sued for the price of timber delivered and accepted under the contract, and it was within the issues thus presented for him to testify that the cyclone timber was accepted by agreement in part performance of the contract. Both parties testified, as has already been shown, that this timber was to be delivered and accepted under the contract, the only point of difference being as to whether or not deduction should be made for any damage found. But, even if this was not strictly within the pleadings, there was no prejudice in allowing it to be introduced, for defendant did not claim any surprise, nor ask for further time to procure further testimony on that issue. It met the issue squarely, and introduced testimony contesting the plaintiff's claim. We think no prejudicial error was committed on this branch of the case.

The next assignment is that the court erred in refusing to allow the defendant to introduce testimony as to the condition of the account between the parties prior to July 1, 1908. We find on examination of the record that this assignment is not sustained for the court did permit...