Hope Lumber Co. v. Foster & Logan Hardware Co.

• Decision Date: 26 April 1890
• Citation: 13 S.W. 731
• Parties: HOPE LUMBER CO. <I>v.</I> FOSTER & LOGAN HARDWARE CO.
• Court: Arkansas Supreme Court

13 S.W. 731

HOPE LUMBER CO.

v. FOSTER & LOGAN HARDWARE CO.

Supreme Court of Arkansas.

April 26, 1890.

Appeal from circuit court, Nevada county; C. E. MITCHELL, Judge.

Smoote, McRae & Arnold, for appellant. Atkinson, Tompkins & Greeson, for appellee.

HUGHES, J.

On the 6th day of August, 1888, the appellee sued John J. and Sallie Duvall on account for $400, and had an attachment levied on three car-loads of lumber, which was sustained against defendants, and from which they have not appealed. The appellant filed its interplea, claiming the property attached; and the court, sitting as a jury, found that the property did not belong to appellant, but to John J. and Sallie Duvall, and dismissed the interplea. Appellant excepted, filed a motion for a new trial, which was overruled, and interpleader excepted, and appealed. The motion for new trial is, substantially, that the circuit court erred in its findings of the facts and the application of the law.

The facts are that, in response to a letter from J. J. Duvall, asking the Hope Lumber Company if it could take the "whole cut" of his mill, the Hope Lumber Company sent Duvall an order for lumber, specifying therein the dimensions of lumber it would take, and the price it would pay for the same, "f. o. b.," which meant "free on board," of cars at Prescott, — Duvall to pay for the loading of the lumber on the cars at Prescott, and the Hope Lumber Company to pay the freight, and, when order was filled, to pay Duvall one dollar on each car for loading; Duvall being authorized to draw on Hope Lumber Company for what money he might need. The bills of lading for the three carloads of lumber were made in name of J. J. Duvall, and the cars were consigned to the Hope Lumber Company. The three car-loads of lumber were consigned to the Hope Lumber Company to fill, in part, the order above mentioned. Duvall was at the time indebted to the Hope Lumber Company for money advanced him on lumber. He had arranged with the laborers who loaded his lumber on cars that they could retain the bills of lading until their wages were paid. The agent of the appellee, learning that the laborers had possession of three bills of lading, paid them $20, which they said Duvall owed them; and they delivered the bills of lading to him, which he took, with the writs of attachment in the case, and immediately went to Hope and to the lumber yard of the Hope Lumber Company, where he found the three car-loads of lumber, one of which had been unloaded, and the other two of which were being unloaded, and by his direction the sheriff levied the writs of attachment on the lumber. This was on the 6th day of August, 1888. Mr. White, the book-keeper of the Hope Lumber Company, and authorized to represent the company, after learning what had been done, told the agent of appellee that he did not want any trouble, and afterwards said that they did not claim the lumber, and that, if appellee would be responsible to Duvall, they would settle for it as soon as checked up, which would be the next day. The next day the Hope Lumber Company gave bond and retained the lumber. The agent of appellee was notified by the sheriff on the same day of the giving of this bond.

Appellee's counsel contends that the Hope Lumber Company was not the purchaser of the lumber, but a factor, and that, the laborers having possession of the bills of lading, the delivery of them to appellee for value carried the property in the goods covered thereby. In our opinion, the facts do not sustain this view of the case, but show, on the contrary, that the Hope Lumber Company was the purchaser of the lumber. The laborers had no title to the lumber; and, if they might, in any event, have had a lien upon it, that question is not involved here. The evidence shows that before the levy of the...