McCarthy v. McArthur

• Decision Date: 11 May 1901
• Citation: 63 S.W. 56
• Parties: McCARTHY et al. v. McARTHUR et al.
• Court: Arkansas Supreme Court

63 S.W. 56

McCARTHY et al. v. McARTHUR et al.

Supreme Court of Arkansas.

May 11, 1901.

Appeal from circuit court, Faulkner county; George M. Chapline, Judge.

Action by J. S. McArthur and another against J. H. McCarthy and another. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

J. W. House, for appellants. O. L. Miles, Bolton & Young, and Ratcliffe & Fletcher, for appellees.

BATTLE, J.

J. S. McArthur and Wood Rainwater brought an action against J. H. McCarthy and George Reichardt, partners doing business under the firm name and style of McCarthy & Reichardt, upon a contract in the words and figures following:

"Little Rock, Ark., Nov. 29, 1898. Memorandum. It is agreed that James S. McArthur is to have the clearing of the right of way, subject to all conditions named in the Choctaw & Memphis specifications. He is to do twenty miles or more, as hereafter agreed upon, and to work at such points as is necessary from time to time, for which we agree to pay $12.00 per acre. * * * No work will be estimated or paid for that is not in strict conformity to the requirements of the Choctaw & Memphis Railroad specifications. [Signed] J. S. McArthur. McCarthy & Reichardt."

They alleged in their complaint that McCarthy & Reichardt and McArthur selected the 20 miles of the right of way of the Choctaw & Memphis Railroad Company which was to be cleared by McArthur under the contract, and that McArthur at once entered upon the work of clearing the said 20 miles of right of way, and cleared the same, to the extent of 12 miles, in accordance with his contract, amounting to 144 acres, of the value of $1,728, of which $300 has been paid, and that there still remains due and unpaid $1,428.

McCarthy & Reichardt, answering, denied that he (McArthur) cleared 144 acres, and alleged that he cleared only 55.39 acres, for which they agreed to pay him at the rate of $12 per acre, making the sum of $664.68, and that they had paid him the sum of $300.

The jury that tried the issues in the action returned a verdict in favor of the plaintiffs for $1,031, and the defendants appealed.

The amount due the appellees for the work done depends upon the meaning of the words and figures "$12.00 per acre" in the contract sued on. It appears from the evidence adduced in the trial in this action that a large portion of the right of way which McArthur claims to have cleared passed through farms or open fields, where there was no or very little clearing to do, and that in many places in such farms or open fields he cut only an occasional tree or stump, and in some places did nothing. Appellees contend that they are entitled for the work done by McArthur to $12 per acre for the entire area covered by the right of way, without regard to the amount of work done in such farms or open fields; and appellants contend that appellees were entitled to $12 for each acre cleared where the forest had been undisturbed, and for the work done in farms and open fields in clearing the right of way they were entitled to the proportion of $12 that such work bore to that required to be performed in clearing the right of way where the forest was undisturbed.

Appellants offered evidence in the trial, in support of their contention, to prove that it was the general custom in this state to pay, for work done in clearing the right of way for railroads through farms and open fields, the proportion of the contract price that such work bears to the work to be done in clearing the right of way through the forest. To illustrate: Suppose the contract price was $40 an acre, and that the work of clearing the right of way through farms and open fields was one-tenth of that done in clearing the same through the forest; $4 would be the price paid for the work done in the farms or fields, according to the custom. They offered to prove that this custom was in existence at the time the contract sued on was entered into, and had been for many years prior thereto, in this state and elsewhere. To the admission of this evidence the appellees interposed a general objection. The ground upon which the objection was based is not stated in the record, and we can consider it only as to the competency of the evidence. Railway Co. v. Murphy, 60 Ark. 333, 30 S. W. 419. The court sustained the objection and refused to allow the evidence to be adduced, saying: "This is a suit upon a written contract. The price of the labor is fixed in the contract, and also the character of the labor to be done or performed is set out in the contract. Any extra or additional labor is not mentioned, and the court holds that custom and usage have no place in this suit upon this contract."

The contract in question is not entirely free from ambiguity. Appellants agreed to pay McArthur $12 per acre for clearing the right of way for 20 miles. Does it mean that $12 an acre shall be paid for the acres actually cleared, or that the 20 miles, when entirely cleared, shall be paid for according to the number of acres contained in the same? The 20...