Edgar Lumber Co. v. Cornie Stave Co.

• Decision Date: 20 June 1910
• Citation: 130 S.W. 452,95 Ark. 449
• Parties: EDGAR LUMBER COMPANY v. CORNIE STAVE COMPANY
• Court: Arkansas Supreme Court

130 S.W. 452

95 Ark. 449

EDGAR LUMBER COMPANY v. CORNIE STAVE COMPANY

Supreme Court of Arkansas

June 20, 1910

Appeal from Union Circuit Court; George W. Hays, Judge; affirmed.

STATEMENT BY THE COURT.

This suit was instituted in the Union Circuit Court by the Cornie Stave Company against the Edgar Lumber Company to recover damages in the sum of $ 972.11 for an alleged breach of contract. Both parties are corporations duly organized under the laws of the State of Arkansas. The contract of June 25 1902, having expired by its own terms, this suit was brought on the second contract, which is as follows:

"This contract and agreement made and entered into by and between the H. C. McDaniel Lumber Company, of Wesson, Arkansas hereinafter known as the party of the first part, and the Cornie Stave Company, of Junction City, Arkansas, hereinafter known as the party of the second part:

"Witnesseth that, for and in consideration of the sum of one dollar cash in hand paid by the party of the second part, the receipt of which is hereby acknowledged, the party of the first part hereby agrees and contracts with the party of the second part to use their best efforts at all times to secure cars for loading bolts and staves on their main line and spurs, and to deliver same promptly, when loaded, to their nearest connection with the Arkansas Southern Railroad.

"The party of the first part further agrees and contracts with the party of the second part that, in order to better protect the interest of the party of the second part in the territory adjacent to the tramroad of the H. C. McDaniel Lumber Company, to charge all parties, except the party of the second part to this contract, the following rates on shipments off their road: Staves and heading bolts, $ 20 per car; sawn staves and sawn heading, $ 20 per car; rough split staves, $ 25 per car; bucked staves, $ 30 per car. And all surplus over rates established for party of second part shall be credited to account of party of second part. In consideration of the above, the party of the second part agrees to pay to the party of the first part the following rates on stave mill products, viz: Oak staves and heading bolts, $ 10 per car; oak sawn staves and heading, $ 10 per car; oak rough split staves, $ 12 per car; oak bucked staves $ 15 per car.

"The party of the second part further agrees, in consideration of the above specifications on the part of the party, to handle all stave products gotten out by them in the following territory, viz: north half township 19, range 17; all of township 19, range 18; all of township 20, range 18, in Union County, Arkansas. Also township 23, range 5 south and west of Cornie Creek; also township 22, range 5; also township 23 range 6 and township 22, range 6, in Claiborn Parish Louisiana; over their logging road under their above agreement, and that they will not divert any part of said material to any other line for transportation.

"It is further agreed and understood that, should more than one class of material be loaded into the same car, the higher rate is to be effective on said shipment. It is further agreed that the freight due the party of the first part on above-mentioned shipments shall be paid by the party of the second part on the 15th and 1st of each month. It is further agreed and understood by both parties that this contract is to be in full force and effect immediately upon the expiration of the present contract existing between the party of the first part and the party of the second part, made and signed June 25, 1902, and is to remain in full force and effect for the period of six years from its commencement. It is further agreed and understood that this contract shall be binding on both parties to this agreement, their heirs and assigns.

"This contract made and signed in duplicate this the 28th day of April, 1903."

At the time these contracts were executed, and thereafter, the Cornie Stave Company owned and operated a stave mill at Junction City, Arkansas, on the main line of the Arkansas Southern Railroad, which commenced at El Dorado and extended south sixteen miles to Junction City, and from there into the State of Louisiana. Cornie Junction was a regular station on said railroad, about four miles north of Junction City. The town of Wesson was about four miles west of the town of Cornie Junction and from the line of the Arkansas Southern Railroad. It came into existence by reason of the location there of a sawmill plant by the H. C. McDaniel Lumber Company, a domestic corporation. A spur railroad track was constructed from Cornie Junction to Wesson for the use of the McDaniel Lumber Company in hauling its products from its mill to the main line of said railroad at Cornie Junction. For the purpose of hauling saw logs to its mill, the McDaniel Lumber Company constructed a tram or log road, some ten miles in length, extending out into its timber west of the mill. This tram road was of standard guage, and was connected with the spur track at Wesson. The McDaniel Lumber Company owned an engine, and operated it for the purpose of hauling logs on its tram road to its mill to be sawed into lumber, and also for the purpose of hauling lumber from its mill over the spur track to Cornie Junction on the main line of the Arkansas Southern Railroad Company. The cars used were obtained from the railroad company.

In the territory traversed by the tram road was valuable stave timber, some of which was owned by the Cornie Stave Company. The contract in question was executed for the purpose of having this stave timber hauled to its mill.

In the year 1904 the Edgar Lumber Company was incorporated, and during the same year purchased the entire holding of the McDaniel Lumber Company. The contract in question was then in force, and was being performed by the McDaniel Lumber Company. The Edgar Lumber Company continued the performance of the contract according to its terms for a period of time which will be stated later. On the 14th day of September 1905, articles of incorporation of the El Dorado & Wesson Railway Company were issued. The stockholders were in the main the same as those of the Edgar Lumber Company. This railroad was constructed from Wesson to El Dorado, a distance of ten miles. The steel was removed from the spur track between Wesson and Cornie Junction after the El Dorado & Wesson Railroad was finished; and some time in August, 1907, the Edgar Lumber Company ceased to use said spur track. Thereafter its cars were carried to the main line at El Dorado over the El Dorado & Wesson Railroad. The Edgar Lumber Company continued to perform the contract sued on until the 16th day of July, 1908, at which time it refused to deliver any more cars under the terms of said contract to the main line of the Rock Island Railroad, which had become the successor of the Arkansas Southern Railroad Company. During the latter part of the year 1907, and after the spur track had been torn up, the Edgar Lumber Company hauled the cars containing its lumber and the timber of the Cornie Stave Company over the line of the El Dorado & Wesson Railroad to El...