Glasscock v. Rosengrant

• Decision Date: 23 January 1892
• Citation: 18 S.W. 379,55 Ark. 376
• Parties: GLASSCOCK v. ROSENGRANT
• Court: Arkansas Supreme Court

18 S.W. 379

55 Ark. 376

GLASSCOCK v. ROSENGRANT

Supreme Court of Arkansas

January 23, 1892

APPEAL from Greene Circuit Court, J. E. RIDDICK, Judge.

In January, 1884, Glasscock sold to Rosengrant the standing oak timber of prescribed dimensions on a large body of lands situated in township seventeen north and range seven east and in several other townships named. By the contract, which was reduced to writing, it was provided that the standing trees should be counted, marked and paid for in 1884. The contract contained, in substance, the following among other provisions:

Eighth. It is stipulated that no part of the timber or staves made therefrom in township 17 north, range 7 east, shall be removed or otherwise disposed of until all the timber on the other land mentioned in the contract is paid for.

Ninth. That in case Rosengrant shall remove the staves or timber from any of the lands in township 17 north, range 7 east before paying for the timber on the lands outside of said township, he will make Glasscock secure in the sum of $ 1000 for the faithful counting, marking and paying for all the timber on the land mentioned in the contract outside of said township 17.

Twelfth. That should the title of Glasscock fail to any of the lands mentioned in the contract, or should any of them be redeemed before the timber thereon shall have been counted and paid for, such lands shall be considered out of the contract. If such timber shall have been paid for, Glasscock agrees either to refund the amount so paid or to furnish Rosengrant with other timber in lieu thereof.

Thirteenth. Should Rosengrant fail or refuse to carry out in good faith any of the stipulations or agreements in the contract Glasscock shall have the right to declare the contract void.

Fourteenth. Rosengrant is to remove all the timber from all of said lands within three years from the date of the contract, and was to have no claim on any timber thereon after that time.

The title of Glasscock to a large portion of the lands outside of section seventeen proved defective; but it was agreed that he had good title to 2000 acres the standing timber on which Rosengrant neither counted nor paid for. In the fall of 1886 Glasscock gave Rosengrant notice to quit cutting timber on any of his land.

In February, 1889, Rosengrant brought this suit, alleging that he had made to Glasscock overpayments for timber amounting to $ 1708.27. Defendant denied the indebtedness; pleaded the statute of limitations; claimed a set-off of $ 2844.40 for timber counted and received but not paid for; and counter-claimed damages in the sum of $ 5000 for plaintiff's failure to take and pay for timber included in the contract, and for $ 1000 as liquidated damages under the ninth clause of the contract above quoted.

Rosengrant testified that he entered into a contract with the defendant to purchase a large quantity of timber from him and that he advanced him $ 5091.71 on trees, timber and staves, and that he only received timber and staves from him to the value of $ 3457, and that appellant owed him $ 1708.27 in excess of timber, etc., received from him. That he gave defendant a statement showing that he only owed him $ 76, and in that statement he did not include three drafts aggregating $ 763.81 which he had paid defendant, and said the reason he did not include them was that he had been trying to get a settlement with defendant, and supposed that if he gave him a statement showing that he only owed $ 76, defendant would pay it, and he could then produce the drafts and collect them. That at the time he gave defendant the statement he had credited him with a large amount of trees marked up in the woods, and that afterwards defendant sold the trees to another, and he then charged him back with them, which, when added to the $ 76 and the three drafts, aggregated $ 1708.27 that he did not get any of the trees charged back to defendant.

Glasscock admitted the receipt of the money on all the drafts charged against him in the account sued upon; but claimed further credits for timber not paid for, which credits should have been included in the statement rendered by plaintiff in 1885.

The court refused to charge the jury at defendant's request:

"1. Where parties have dealings with each other and one renders to the other a statement purporting to set forth all the items of indebtedness on one side and credits on the other the account so rendered, if not objected to in a reasonable time, becomes an account stated, and cannot afterwards be impeached except for fraud or mistake; and if the jury find that plaintiff rendered defendant a statement and kept back any item for the purpose of deceiving defendant, he would be precluded from thereafter bringing in such items as a charge against defendant in this action."

"7. If a party voluntarily pays money with a full knowledge of all the facts, in satisfaction of a demand made against him he cannot afterwards allege such payment to have been unjustly demanded and recover back the money."

The instructions given by the court are sufficiently stated in the opinion. Upon interrogatories propounded the jury found specially that plaintiff had overpaid defendant $ 1708.27; that he owed defendant for timber taken and unaccounted for $ 750; that defendant was not damaged by plaintiff's failure to take the timber off the 2000 acres outside of township seventeen. Judgment was rendered for plaintiff, on the verdict, for $ 958.27. Defendant has appealed.

Judgment affirmed.

L. L. Mack for appellant.

1. The contract was in the alternative, and Rosengrant could perform it in one or two ways; by counting, measuring, etc., and paying for all timbers sold on the lands outside of township 17, before removing staves or timber off lands in township 17, or by securing Glasscock in the sum of $ 1000, and then removing said timber, etc. He elected to remove the staves, timber, etc., from township 17, and must be held to have elected to pay the $ 1000 as liquidated damages. Suth on Dam., 447, 475, 477; 7 S.W. 777; 29 F. 715; 16 P. 890; 5 So. 149; 14 Ark. 315.

2. The sale of standing trees is an interest in land, and the title passes on execution and delivery of the deed. A. & E. Enc. Law, vol. 5, p. 445, note 4. If the title passed to the trees, the measure of damages would be the value of trees at the price agreed upon with interest from the time the price became due by the contract. 14 Am. Law Reg., 326; 35 Ark. 190; Parsons on Cont., vol. 1, *p. 527; Kent's Com., (12 ed.), vol. 2, p. 492.

3. When an account stated is rendered, each of the parties is bound by it, unless fraud or mistake be shown. 41 Ark. 502; 2 Gr. Ev., secs. 127-8.

4. When only one account exists, payments go to the oldest item in the account. Story, Eq. Jur. vol. 1, sec. 45; Parsons on Cont., vol. 1, p. 633; 9 Wheat., 737; 38 Ark. 291; 2 So. 292; 3 S.E. 624; 5 So. 181,

5. The payments were voluntary, with full knowledge of all the facts. 2 Col. 97; 20 P. 64; 69 Tex. 267; 6 S.W. 757.

6. Appellee is barred. Mansf. Dig., sec. 4478.

J. C. Hawthorne for appellee.

1. There is evidence to sustain the verdict. 49 Ark. 122; 40 id., 168.

2. The appellant made no objection to the amount of the judgment in the court below, and cannot complain here for the first time. 28 Ark. 188; 51 id., 212; Mansf. Dig., sec. 1310; 45 Ark. 524.

3. The account rendered was only prima facie evidence of its correctness, and subject to explanation. 4 Johns., 377; 5 N.E. 787; 1 Johns. Chy., 550; 16 S.W. 834; 18 N.Y. 292; 102 N.Y. 701.

4. The issues tried presented no case of voluntary payment. The money was advanced for timber expected to be received. 20 P. 673.

5. No title passed until the trees were received, counted and branded.

6. As to the question of $ 1000 as liquidated damages, see 16 N.Y. 278.

7. The action is not barred. The statute was not set in motion until appellant notified appellee to cease taking the timber. See Wood on Lim., 337; 27 Tex. 693; 9 N.Y. 476.

OPINION

MANSFIELD, J.

1. This action was brought to recover back the sum of $ 1708.27 which the complaint alleges was paid to the defendant in excess of the amount due to him for all the staves and timbers received by the plaintiff under the written contract of the parties entered into on the 4th day of February, 1884, and exhibited with the defendant's answer. As the plaintiff rested his right to recover upon...