McVeigh v. Chicago Mill & Lumber Co.

• Citation: 132 S.W. 638,96 Ark. 480
• Parties: MCVEIGH v. CHICAGO MILL & LUMBER COMPANY
• Decision Date: 14 November 1910
• Court: Supreme Court of Arkansas

132 S.W. 638

96 Ark. 480

MCVEIGH v. CHICAGO MILL & LUMBER COMPANY

Supreme Court of Arkansas

November 14, 1910

Appeal from Mississippi Chancery Court, Chickasawba District; Edward D. Robertson, Chancellor; reversed.

Decree reversed.

Allen Hughes, for appellant.

1. The contents of the abstracts are to be judged by the terms of the contract. While there is much in the abstracts that is not indispensable, and would not appear in the ordinary abstract, yet they are what the appellee wanted and contracted for. The contract is a reasonable one, and appellee should not escape payment for the work done because subsequent events have lessened the need of information so detailed and complete.

2. Appellee is bound by the interpretation placed upon the contract by the parties themselves in the conferences and negotiations between its attorney and McVeigh, resulting in the latter agreeing to reduce his gross charge for the work 7 1/2 per cent., appellee in coming to such agreement necessarily acceding to his contention that the contents of the abstracts were in accordance with the contract. 95 U.S 269; 46 Ark. 131; 52 Ark. 65; 55 Ark. 418. Moreover, there was a complete ratification of the work, in that appellee's attorney, seeing what was going into the abstracts and the manner in which the work was being done made no objections at the time. Story on Agency, § 244; 83 Ark. 446. The agreement with Gilbert amounted to a compromise and settlement of the controversies between the parties. 8 Cyc. 501; 137 U.S. 78, 85; 47 Ark. 335; 75 Ark 266.

3. Each separate transaction, separately of record, affecting the title, constitutes a transfer within the meaning of the contract. Anderson's Law Dict., 55 N.Y. 22; 36 Conn. 429.

W. C Gilbert, Charles T. Coleman and Hawthorne & Hawthorne, for appellee.

1. The findings of the master as to all facts where there was evidence to support them are conclusive. The appointment of the master by the parties themselves in vacation, without any reservation, conferred upon him full power to pass upon and construe the contract and upon all questions arising in the case. 129 U.S. 512; 74 Ark. 338; 85 Ark. 414; 155 U.S. 636; 144 U.S. 585; 145 U.S. 132; 92 Ark. 359. Appellee is not estopped from questioning the abstracts or the amount charged for the work. There is nothing in the record to show that either party treated the examination made by Mr. Gilbert as an acceptance or approval of the abstracts or of the manner in which they were made. If appellant McVeigh was relying upon an approval, or ratification, of his work, undoubtedly he would have mentioned it in his correspondence. 53 Ark. 201; 46 Ark. 131; 52 Ark. 65; 55 Ark. 418; 95 U.S. 269; 15 Ark. 319; 13 Ark. 217; 82 Ark. 367; 36 Ark. 114.

2. By "per transfer" is meant that where lands have been transferred from one person to another, the appellant should be paid 66 2/3 cents "per transfer," without regard to the number of pages used in furnishing that information.

3. The words "tax forfeitures" mean, not proceedings culminating in tax sales, as contended by appellant, but a record of the sale alone, either to the State or to an individual. 3 Words & Phrases, 2899; 3 Kan, 364-5; Kirby's Digest, § 4833.

4. The Swamp Land Act is a general law, not a special act. 72 Ark. 195; 75 Ark. 120; 7 Words & Phrases, 6577; 5 Nev. 111. That it is a general law, the courts take judicial notice. 99 Ind. 63; 126 Ind. 398. The act creating the St. Francis Levee District is also a general law, of which the courts take judicial notice. 42 Ark. 592; 20 Ark. 204; 6 Ark. 123; 10 Ark. 423; 36 Ark. 663; 23 Ark. 387; 16 Cyc. 891.

OPINION

MCCULLOCH, C. J.

Defendant Chicago Mill & Lumber Company, owned lands in eastern Arkansas, and employed plaintiff McVeigh to make abstracts of title. They entered into a written contract concerning the matter, dated February 10, 1903, which writing was prepared by McVeigh in accordance with proposals previously made by him to defendant and accepted by the latter. That portion of the contract which is material to this controversy reads as follows:

"That said party of the first part, in consideration of the payments, and upon the conditions herein expressed, upon his part agrees:

"1. To prepare for said party of the second part complete and accurate abstracts of title to all the lands owned by said party of the second part, lying, being and situate in the counties of Craighead, Poinsett and Mississippi, in the State of Arkansas, at and for the sum of sixty-six and two-thirds (66 2/3) cents per transfer, for each and every transfer appearing in each and every abstract, and sixty-six and two-thirds cents per page, or fraction thereof for all decrees, orders of court, tax forfeitures, and miscellaneous matters appearing in each and every abstract, of record or on file, affecting vitally or historically the title to the lands traced therein, each and every section, part of section or tract of land to be abstracted separately and independently of all others, according to its independent chain of title, provided, that no abstract of title shall trace the title to more than one section of land.

"2. That such compiled data shall include all matters of record in the general land office of the United States Government, at Washington, D. C., the register of the land office of the United States Government, at Little Rock, Arkansas, and the Commissioner of State Land Office, at Little Rock, Arkansas, as well as all matters of record or on file in the counties above mentioned.

"3. That said first party shall give a complete transcript of all decrees, orders of court, or documents on file of whatever nature (as well as all special acts of Congress, or the State Legislature), including all tax deeds, provided, that this is not to be construed to mean and include ordinary deeds, mortgages and similar conveyances; and shall append to each deed, mortgage or other instrument, such full, complete and accurate notes and memoranda as may be necessary to a proper explanation. and understanding of same, as well, also, to all decrees or miscellaneous documents, when, in his judgment, same as may appear necessary. * * *

"10. For all of above the said party of the second part, on its part, hereby agrees to pay to the said party of the first part, upon the final completion and delivery of said above-described work, the sum of sixty-six and two-thirds cents per transfer or page for same as more particularly described and set out in paragraph number 1 (first), it being agreed that the plan of the work contemplates the abstracting of each parcel or tract of land separately and independently of the others, and to be paid for at the said rate for each transfer or page contained in each and every one of said abstracts."

Plaintiff McVeigh proceeded with the work of preparing the abstracts, and during the progress thereof defendant advanced to him the sum of $ 9,000 on the price. Before the completion and delivery of the abstracts, the parties entered into a further agreement with reference to a reduction of the contract price. This is evidenced by a letter of McVeigh to the defendant, dated September 26, 1904, as follows:

"I beg to confirm to you what I have already stated to your Mr. Gilbert, that, in consideration of your having made advances to me in the past to be credited to you on account of our contract of February 10, 1903, and of your agreement to advance me the further sum of $ 1,500, as follows: $ 500 on account of September, $ 400 October 1, $ 400 November 1, and $ 200 December 1, which advances are likewise to be credited to your account, I have agreed to give you a discount of 7 1/2 per cent. on the gross amount of your bill."

Further advances were thereafter made by defendant, pursuant to this agreement. McVeigh completed the abstracts and delivered them to the defendant and rendered a bill for the service, claiming payment for 36,083 transfers and pages, amounting, at the contract price, to $ 24,055.33. Payment was refused, and plaintiff and his assignee instituted this action against defendant in the circuit court of Mississippi County to recover the amount alleged to be due for said service according to the contract price, after deducting 7 1/2 per cent. from the gross amount and the sum of $ 9,000 advanced, leaving a balance of $ 13,251.10 claimed to be due and unpaid.

Defendant answered the complaint, disputing the amount of the account, and alleging in substance that McVeigh had not complied with the contract; that the abstracts were incorrectly and improperly prepared and contained thousands of pages of useless, immaterial and irrelevant matter not covered by the contract, and that the same were grossly padded for the purpose of increasing plaintiff's claim for the service. These objections are set forth in detail in the answer. An additional credit of $ 539.50 is also claimed over and above the sum of $ 9,000, being for a draft alleged to have been paid for plaintiff. The answer contained a motion to transfer the cause to the chancery court and for reference to a master to take proof and state an account between the parties.

The case was transferred to the chancery court, and the following order of reference is found in the record, which was entered at the October term, 1907: "The agreement of counsel for the appointment of Basil Baker, Esq., as special master in this cause, is filed, and the appointment of said master, made in vacation, is by the court confirmed." There is no prior order in the record concerning the reference to a master, and the agreement of counsel mentioned in the order of the court is not in the record.

The special master took testimony adduced by the respective parties, and made his report to the...