Dierks Lumber & Coal Co. v. Coffman

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

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

[96 Ark. 507] 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 [96 Ark. 508] 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 [132 S.W. 655] 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...