Messinger v. Dunham

• Decision Date: 18 April 1896
• Citation: 35 S.W. 435
• Parties: MESSINGER v. DUNHAM.
• Court: Arkansas Supreme Court

35 S.W. 435

MESSINGER v. DUNHAM.

Supreme Court of Arkansas.

April 18, 1896.

Appeal from circuit court, Lee county; Grant Green, Judge.

Action for breach of contract, brought by J. P. Dunham against Charles T. Messinger. There was judgment for plaintiff, and defendant appealed. Affirmed.

This action arose out of a contract made by plaintiff, Dunham, with defendant, Messinger. By the contract, which was in writing, Dunham agreed that he would erect his sawmill on a certain tract of timber land in Lee county, and proceed to saw the timber, which was owned by him, into lumber for Messinger. Dunham agreed to saw, stack, and load the lumber upon cars for Messinger, under the direction of his agent, who was to measure the logs before they were sawed by Dunham. Messinger agreed to pay Dunham $8.50 per 1,000 feet of lumber loaded on the cars. Three separate causes of action were set out by Dunham in his complaint in separate paragraphs, but the contention here is concerning that set out in the third paragraph. In this paragraph plaintiff, after stating that he had complied with the contract on his part, alleges a breach of the contract on the part of the defendant as follows, to wit: "But the defendant, from May 1, 1893, until August 15, 1893, failed to perform his part of said contract by measuring said logs so that plaintiff could saw the same as aforesaid, but from day to day and from week to week during said interval stated to plaintiff, and induced him to believe, that he (defendant) would proceed with the performance of said contract, and cause said logs to be measured; that on or about said August 15, 1893, the defendant refused to perform his part of said contract; that by reason of such conduct on the part of the defendant, and his failure as aforesaid to perform his part of said contract, and solely on that account, the plaintiff was prevented from performing said contract, and from operating said mill during said time, and was subjected to expense and delay, and suffered damages and loss thereby in the sum of thirteen hundred and fifty dollars," for which he prayed judgment. The plaintiff also filed an affidavit and obtained an attachment on the ground that the defendant was a nonresident. The affidavit alleged that "his claim is for money due on contract," and stating the amount. The defendant appeared, and filed his answer. There was a verdict in favor of plaintiff, and the damages assessed for the cause set out in the third paragraph were...