Dierks Lumber & Coal Co. v. Coffman

• Decision Date: 21 November 1910
• Citation: 132 S.W. 654,96 Ark. 505
• Parties: DIERKS LUMBER & COAL COMPANY v. COFFMAN
• Court: Arkansas Supreme Court

132 S.W. 654

96 Ark. 505

DIERKS LUMBER & COAL COMPANY v. COFFMAN

Supreme Court of Arkansas

November 21, 1910

Appeal from Howard Circuit Court; James S. Steel, Judge; affirmed.

Judgment affirmed.

Sain & Sain and J. S. Kirkpatrick, for appellant.

The agency of Campbell could not be established by proof of statements made by him to the effect that he was such agent. 31 Ark. 212; 33 Ark. 251.

W. C Rodgers, for appellees.

1. It is undisputed that the supplies were furnished; that those furnished on the May payroll were sent to DeQueen, and were paid; that Mr. Dierks made no objection to the orders in dispute except that the two mills were "in the hole," and that amounts of these orders were deducted in the settlement between appellant and the hands.

There is no better way to interpret a contract than by the acts of the parties under it, and appellant, under these facts will not be heard to deny its liability. 46 Ark. 129; 52 Ark. 65; 55 Ark. 414; 78 Ark. 202; Id. 418; 80 Ark. 543; 130 S.W. 452; 91 Ark. 350.

2. Proof of Campbell's agency does not depend on his declarations. There is other evidence in the record of such agency. Moreover, there is no assignment in the motion for new trial of error in the manner of proving his agency. 23 Ark. 19; 91 Ark. 427; Id. 441; 73 Ark. 530; 77 Ark 27; Id. 418; 67 Ark. 531; 70 Ark. 337; Id 427.

The testimony tends to show that what he said appellant would do was done, and to establish the course of dealing contended for by appellees.

3. Appellant cannot avail itself of the statute of frauds by raising the question here for the first time. This statute cannot be relied on unless pleaded in the answer. 71 Ark. 302; 46 Ark. 96; 70 Ark. 558; 87 Ark. 443; 70 Ark. 558; 80 Ark. 391; 81 Ark. 476; 82 Ark. 260; 83 Ark. 574; 79 Ark. 53; 90 Ark. 469; 74 Ark. 72; 90 Ark. 531.

OPINION

HART, J.

This is an appeal by the Dierks Lumber & Coal Company, a corporation, from a judgment rendered against it in the Howard Circuit Court for $ 281.07 in favor of Coffman Brothers, a partnership, composed of J. H. Coffman, D. D. Coffman and T. J. Coffman. The facts are substantially as follows:

Appellant owned a great quantity of timber situated in the northern part of Howard County. Appellant and one James Graves entered into a written contract whereby the latter agreed to erect a saw mill on the lands of the former, and saw its timber into lumber. The price to be paid for the sawing was fixed by the contract. Appellant was designated in the contract as the party of the first part, and James Graves as the party of the second part. Among other provisions, the contract contained the following:

"The party of the first part reserves the right to pay direct to all employees of the party of the second part who would be entitled to a lien on said lumber under the laws of the State of Arkansas all that may be due such employees, the balance to be paid direct to the party of the second part on or before the 10th day of the month following such grading, stacking and counting."

J. H. Coffman, one of the appellees, testified that his firm owned and operated a supply store at New Hope near the sites of said mills. That J. M. Campbell and H. L. McGehee stayed all night with him, and he asked them about letting the mill hands have supplies. McGehee was foreman at Moore's mill, and Coffman, in response to a question by the court as to whom Campbell was representing, answered that he was representing the appellant. Coffman further said: "He (Campbell) told me that they were responsible--that the Dierks people were responsible for all of the labor that was done at the mills, and I told him very well, or something of that kind, and went ahead, and when the foreman issued an order to the hands for the time, why we took these orders, and let them have goods, and turned the orders in to the office at De Queen, for the May payroll of 1908, I believe, to the best of my recollection, and they paid for all of the orders."

The May orders went into the office of appellant, and were promptly paid by it. The appellees then furnished supplies on the June orders or time checks issued by the mill foreman, and these in turn were sent in to the appellant for payment, and payment was refused. The amount due on these orders is $ 281, and represents the same kind of transaction as occurred on the supplies furnished in May.

The following is quoted from the testimony of J. H. Coffman:

"Q. Now, who did you contract with? A. As I told you a while ago, I spoke to Mr. Campbell there, and asked him about this matter. I seen how it was coming up, and he says we are responsible for all the time--we pay the labor of the hands, whether the mill man cuts anything or not, and that was about all. That was the most I recollect. Q. Mr. Campbell is with the Dierks Lumber Company, isn't he? A. Yes, sir. Q. Whom did you look to for payment? A. I look to the Dierks people. Q. Whose timber was it that they were sawing up, Mr. Coffman? They were sawing the timber of the Dierks Lumber and Coal Company, were they not? A. Yes, sir. Q. And these hands that were furnished supplies to were hands working at the mills of the defendant? A. Yes, sir."

H. L. McGehee testified as follows:

"Q. Do you know where the Moore mill was? That's in Howard County? A. Yes, sir. Q. What connection did you have with it? A. I was foreman. Q. Did you write any orders for the hands of that mill? A. Yes, sir. Q. To the defendants? A. Yes, sir; some to them. Q. Have the Dierks people sent you the money to pay Coffman? A. Yes, sir. Q. Now, Mr. McGehee, whose lumber were the Dierks people getting up there? A. Dierks'. Q. Where did that lumber go after it was cut? A. It went from there to Dierks--supposed to go there--but some is there yet, I think. Q. Was it more convenient to get supplies for the hands up there at New Hope or at Dierks? A. It was more convenient at New Hope. Q. Did Mr. Campbell say anything to you about furnishing these supplies at the time you took charge of the Moore mill? A. Why, all Mr. Campbell said to me was he instructed me not to give orders for any more time than the men had coming. Q. That had reference to the time for supplies? A. Yes, sir. Q. And of course you did not do so? A. No, sir. Q. Mr. McGehee, do you know whether or not, in settling up with these men for their time, these orders for supplies were deducted out of their time? A. Yes, sir."

Owen Phillips and J. J. Coffman testified that they worked at the Moore mill, and that they bought supplies from appellees during this time; that McGehee would give them an order for the amount of time they had worked, and the amount due therefor, and they would take it and buy supplies from appellees with it; that in settling with them McGehee would only pay them for what was left after deducting these orders which had been given them with which to trade with appellees.

Will Wilson testified as follows in regard to the agency of Campbell:

"Q. Do you know Mr. Campbell? A. Yes, sir. Q. What connection has he with the Dierks people? A. He has been working for them quite a while in our country as agent. Q. Was he working there in 1908? A. Yes, sir."

J. H. Coffman, being recalled, again stated that, in talking with Campbell about the mill hands getting supplies from his firm, Campbell said they (meaning appellant) would be responsible for all the time the hands had coming. He further stated that, upon the refusal of appellant to pay the June orders, he went to see Herman Dierks, the head man of the company, and that Dierks told him that the reason that they had not paid appellees was that "the mills had gone in the hole." That he did not say anything about the authority of the mill people to issue the time checks.

J. M. Campbell testified that he was working for the Choctaw Lumber Company. He denied that he had any conversation with Coffman about supplying the mill hands. He stated that he and Graves were the only persons present when the contract with him was made, and that the Moore contract was similar to that of Graves.

It is apparent that appellant is liable if Campbell had authority to make the contract which is the basis of this suit. While Campbell denies having made a contract with appellees that appellant would be responsible...