Emerson v. Turner
| Decision Date | 06 June 1910 |
| Citation | 130 S.W. 538 |
| Parties | EMERSON v. TURNER. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Columbia County; Geo. W. Hays, Judge.
Action by R. L. Emerson against W. D. Turner. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Instruction No. 4 referred to in the opinion of the court is as follows: "You are instructed that if you find from the evidence that the timber was cut on any of the lands described in plaintiff's complaint, and without the authority of Emerson, then you are instructed that plaintiff cannot recover for such timber so cut, unless you further find from the evidence that it was Emerson's duty to look after said land and prevent trespasses upon the same, and that he was negligent in the performance of his duty."
The appellee alleges in his complaint that he owned certain lands in Columbia and Nevada counties, Ark., and had owned these lands for a number of years; that the appellant, R. L. Emerson, was the agent of the appellee to look after these lands, and while he was acting as agent of the appellee, he cut or allowed to be cut, converted or allowed to be converted, 650,000 feet of fine timber growing on lands belonging to the appellee in Nevada county, and that on the 10th day of July, 1903, the appellant cut, converted, and allowed to be converted, pine and oak timber amounting to 1,450,000 feet upon his lands lying in Columbia county, Ark., and asks judgment for the conversion of said timber in the sum of $4,587.50.
Appellant admitted that appellee "employed him to manage and control said lands for him, the said plaintiffs; that under said employment he took charge of said lands for the plaintiff and has since said time had control of same and paid taxes thereon; he admits that plaintiff is still the owner of 160 acres of land in the county of Nevada and about 220 acres in the county of Columbia."
Appellant denies "that he converted to his own use the property of appellee. He further alleges "that under his contract of agency with the appellee, he was to manage and control said lands and was empowered to sell same, or any part thereof, or interest therein belonging to the said appellee in like manner as if he was the owner thereof, and to keep the taxes paid thereon; from time to time it was agreed that he report his actions in respect to said lands to the appellee; and further alleges a full compliance of the contract on his part with the appellee, and alleges that during the time that he was employed as agent, that he paid taxes on said lands to the amount of $43.42, during all of which time he was unable to hear from the appellee; that the appellee wholly failed to reimburse him for this amount; and further alleges that during the time he was acting as agent and had full management and control of said lands that the said appellee sold nearly all the lands that he owned in Columbia and Nevada counties, receiving therefor the sum of $4,500, for which he never compensated the appellant for his services rendered in this respect, and alleges that 10 per cent. or $450 would be a reasonable compensation therefor. He further alleges that in the year 1903, after he had made repeated efforts and was unable to locate the appellee, he, as such agent, sold to the Camden Lumber Company the pine and oak timber on 220 acres of land lying in Columbia county, Ark., receiving therefor about $250, which was the reasonable cash market value for said timber at that time. The appellant further pleads the statute of limitation as to all claims of the appellee. The suit was brought in Columbia county.
The facts are as follows: In the year 1882 the appellee, W. D. Turner, purchased from the state of Arkansas several hundred acres of land lying in the counties of Columbia and Nevada, Ark. Soon after he purchased these lands he employed the appellant as his agent to look after the lands, see that the taxes were paid, and to find a purchaser. Emerson testified that he was given full authority to sell the lands. Turner testified that he was to find purchasers and the price was to be submitted to him before sale was made. He also testified that he gave him [Emerson] authority to sell the lands at $2.50 per acre. Emerson testified that he had full authority to sell the timber or the land, and Turner testified that he had no such authority. In the year 1891, Emerson discovered that Turner's title to these lands in controversy was defective and went to work and cleared the title to same and got a new deed, which was made to Turner. This title deed was left by Turner in the possession of Emerson, so that Emerson could exhibit same to purchasers and thereby make a sale of the land. This deed still remains in the possession of Emerson. In 1891 Turner, without the knowledge of Emerson, sold nearly all the lands that he owned in Columbia and Nevada counties, Ark., receiving therefor the sum of $4,500. No commissions were paid to Emerson on this sale. Turner claims that he reserved the right to make a sale himself. He also claims that he knew nothing about the value of the land and was depending upon Emerson for his information as to the value of same. Emerson straightened the title to these lands and got the deed in 1895, and Turner settled the expenses of same in the year 1897. Turner testified that he wrote several letters to Emerson in regard to the lands in the year 1897, but received no reply. He had no further correspondence with Emerson in regard to the matter for 10 years after 1897. Emerson testified that he wrote several times to Turner in 1897-1898, but received no reply and did not know anything about the whereabouts of Turner. He continued, however, to pay the taxes on this land for 10 years after 1897. In 1903 Emerson sold the timber on a large body of land owned by himself to the Camden Lumber Company, and in this deed to the timber he included the timber on the lands owned by Turner in Columbia county, Ark. It appears from the evidence that pine timber had been cut from the lands owned by Turner in Nevada county, Ark. One witness testified that he came down to see Mr. Emerson in the year 1891 in regard to buying some land, and that in this conversation he had with Emerson, Emerson told him that if any one cut the timber on these lands in Nevada county that he would pay him for the information. This witness states that in that conversation he told Emerson that the timber had already been cut on these lands. Emerson denies that this man ever gave him any such information. This is the only evidence of any knowledge on Emerson's part that timber had been cut from the lands in Nevada county. There is no evidence to show Emerson authorized any one, either directly or indirectly, to cut any of the timber on the lands in Nevada county.
As to the land in Nevada county the court instructed the jury at the request of appellee and over the objection of appellant as follows: ...
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