Dunham v. H. D. Williams Cooperage Co.

• Decision Date: 10 June 1907
• Citation: 103 S.W. 386,83 Ark. 395
• Parties: DUNHAM v. H. D. WILLIAMS COOPERAGE COMPANY
• Court: Arkansas Supreme Court

103 S.W. 386

83 Ark. 395

DUNHAM v. H. D. WILLIAMS COOPERAGE COMPANY

Supreme Court of Arkansas

June 10, 1907

Appeal from Hot Springs Circuit Court; Alexander M. Duffie, Judge reversed.

STATEMENT BY THE COURT.

In January, 1905, Howard Dunham of Texarkana, Arkansas, entered into a written contract with the W. H. Williams Cooperage Company of Poplar Bluff, Missouri, by which Dunham agreed to sell the Cooperage Company white oak heading at the prices named in the contract. The portions of the contract material to be set out are as follows:

"The party of the first part has this day sold to the party of the second part, and the party of the second part has purchased from the party of the first part, 500,000 pieces of white oak heading, said heading to be sawed 22 in. long, full 7/8 of an inch in thickness, and to be taken on a basis of 7 inches per piece, allowance being made for kiln drying and jointing.

"Inspection All heading under this contract to be known as mill run culls eliminated, and no piece will be accepted under this contract that does not measure full four inches wide after allowance being made for jointing and drying, and not more than 1 1/2 inches of sap to be measured.

"Price at which this heading to be delivered f. o. b. cars at Witherspoon, Arkansas (on the Iron Mountain R. R.), $ 22 per 1,000 on basis of 7 inch average per peice as above provided. Party of the second part to make inspection immediately after said heading is received by it at Poplar Bluff, Mo., and its inspection and measurement and count to be final for all purposes of this contract."

There was also a further stipulation that the Cooperage Company should loan Dunham a boiler, engine, saw and other things necessary for the heading mill, which mill Dunham was to use only for the purpose of sawing the heading named in the contract.

Afterwards on January, 16, the Cooperage Company furnished Dunham $ 269.40 to pay for making and hauling bolts. On the 3d day of February, 1905, the company paid Dunham $ 705.80 for the same purpose. On the 7th of March, 1905, they paid him the further sum of $ 343.74.

For the amount paid in February the company simply took from Dunham a receipt stating that the money was received by him from the company "to pay for making and hauling to the mill yard two miles from Witherspoon, 129.69 cords 22 inch heading bolts, 33.75 cords 32 inch heading bolts, same to be sawed into heading for the said H. D. Williams Cooperage Co. [Signed] Howard Dunham."

For the payments made in January and March they took from him bills of sale. The following is the one taken in March, the one in January being in the same form:

"No 12714. H. D. Williams Cooperage Company to Howard Dunham, Dr.

"Address Arkadelphia, Ark., 1905.

"Payment for making and hauling following bolts now at mill-yard known as Witherspoon, 2 1/2 miles from Witherspoon, Arkansas.

"Making 32 inch heading bolts, .80 cords at

$ 2.50

"Making 22 inch heading bolts, 71.99 cords

181.95

"Hauling 32 inch heading bolts, .80 cords

86.79

"Hauling 22 inch heading bolts, 71.99 cords

"J. L. Price, foreman, 1 mo. salary

75.00

"Total

$ 343.74

"Above to cover all claims for labor and timber. Said above described property is hereby transferred and sold to H. D. Williams Cooperage Co.

"Approved Guy Bailey, Cashier; approved R. D. Foley, Sec.

"Poplar Bluff, Mo., March 7, 1905.

$ 343.74. Pay to the order of Howard Dunham three hundred forty-three dollars, seventy-four cents, in full settlement of the above audited voucher.

"W. R. Foley, Treas.

"To the State National Bank of St. Louis, Mo. "

Indorsed on back, "Howard Dunham."

Dunham made and shipped to the Cooperage Company several car loads of heading; but, becoming dissatisfied with the inspection made by the company and at the number of pieces of heading rejected by the company, he refused to ship any more heading unless the company would consent to have the heading inspected before shipment. The company claimed that it had bought the bolts from which the heading was made, and that it owned the heading. It thereupon brought this action of replevin to recover the heading that was then held by Dunham at his mill yard near Witherspoon. Defendant gave bond and retained the possession of the heading.

On the trial the court instructed the jury that under the original contract the ownership of the heading did not pass from Dunham to plaintiff until it had been inspected by the company and accepted at Poplar Bluff, and that they should find for defendant, "unless you further find from the evidence in the case that the defendant, when he signed and indorsed the instruments of writing, dated Jan. 16th, Mar. 7th, and Feb. 3d, 1905, intended to sell and convey to plaintiff the title to the property mentioned and described therein; if he intended to convey the title in the property to plaintiff, then your verdict should be for plaintiff, but if he merely intended to sign and indorse said instruments to secure plaintiff in whatever money was received by defendant, and that no title should pass until such property was shipped and inspected in Poplar Bluff, then you should find for the defendant."

He refused to give the following instructions numbered 7 and 8 asked by defendant:

"7. If you find from the evidence that the plaintiff advanced the defendant money to pay for making and hauling bolts, and that, to secure the same, it took a bill of sale from the defendant for certain bolts, then the bill of sale is in law a mortgage. And if you find that the defendant has shipped the plaintiff heading enough, according to a fair and honest inspection, to pay the amount so advanced, then your verdict should be for the defendant.

"8. If you find from the evidence that plaintiff advanced to the defendant money to pay for making and hauling bolts, and to secure the same took a bill of sale from the defendant covering certain bolts, then the bill of sale is in law a mortgage. And if you find from the evidence that the defendant has shipped to the plaintiff all of the bolts in the form of heading so included in said bills of sale, then your verdict should be for the defendant."

The jury returned a verdict in favor of the plaintiff. Judgment was rendered accordingly, and Dunham appealed.

Judgment reversed and cause remanded.

McMillan & McMillan, for appellants.

1. Under the original written contract, plaintiff could not maintain replevin for the heading. His remedy, if any, was an action on the breach of contract for damages. 72 Ark. 141.

2. The court erred in excluding testimony offered by defendant to show the difference between inspection made by plaintiff of the six cars and that made by defendant of the same cars before shipment, which testimony was relevant and material because (1) no title was to pass until after inspection, etc., by plaintiff at Poplar Bluff, and (2) if plaintiff was practicing fraud in this respect, it would have given defendant the right to rescind the contract and to refuse to ship more heading. 68 Ark. 187.

3. Where a bill of sale, absolute upon its face, is intended by the parties as a security for money advanced, no matter what language is employed in expressing the terms of the contract, it will be held and treated as a mortgage. 13 Ark. 112. The bills of sale in this case are in law mortgages.

4. The bills of sale did not make completed sales, or, if they did, it was only of the bolts therein sold. The original contract was executory, and under it no title passed nor was to pass until the heading was received, inspected etc., at Poplar Bluff. The voucher of February 3d was but a receipt on the part of defendant for money, and transferred no title to any heading or bolts; and when he delivered to plaintiff all the heading made from the bolts described in the bills of sale and in quantity sufficient at the contract price to pay for the advances made, plaintiff had no title or right of possession to the heading remaining in defendant's possession. 25 Ark. 553; 5 Ark. 161; 53 Am. Dec. 241; 14 Am. Dec. 373.

5. The court erred in refusing the seventh and eighth instructions requested by defendant, and in modifying the second whereby the jury were misled.

Gaughan & Sifford, Hardage & Wilson and John H. Crawford, for appellee.

1. The agreement appearing in the record of the judgment makes it in effect a judgment by consent, and from such a judgment no appeal will lie. 32 Ark. 74; 73 Cal. 297; 109 Cal. 395; 31 N.W. 907; 56 N.W. 1028; 60 N.W. 353; 32 N.E. 722; 8 N.W. 721; 4 A. 770; 10 S.E. 829.

2. The evidence discloses such a state of facts as constitutes a delivery, actual or symbolical. 68 Ark. 307; 62 Ark. 592: 31 Ark. 163; Id. 131; 35 Ark. 190; 37 Am. Rep. 22; 31 Ark. 155; 60 Ark. 613; 14 Ark. 345; 23 Ark. 245; 35 Ark. 304.

McMillan & McMillan, for appellant in reply.

The agreement in the record is in effect nothing more than a payment on a judgment, and no right of appeal is thereby waived or lost. 45 Am. St. Rep. 272, note; 1 Am. St. Rep. 891; Id. 217; 56 Am. Dec. 493; 74 Ark. 202; 24 Ark. 14.

OPINION

RIDDICK, J., (after stating the facts.)

This is an appeal by Howard Dunham from a judgment rendered by the circuit court of Hot Spring County against him and in favor of the H. D. Williams Cooperage Company for the possession of 53,690 pieces of white oak heading, and for damages for the detention thereof.

At the time this judgment was rendered the heading had already been sold by Dunham to another party, and there was an alternative judgment against him that if the heading was not delivered to plaintiff it should recover in lieu of those the sum of $ 1,758.54, that being the value of the heading as assessed by the jury. But,...