Milner v. Camden Lumber Co.
| Decision Date | 11 February 1905 |
| Citation | 85 S.W. 234,74 Ark. 224 |
| Parties | MILNER v. CAMDEN LUMBER COMPANY |
| Court | Arkansas Supreme Court |
Appeal from Ouachita Circuit Court, CHARLES W. SMITH, Judge.
Reversed.
STATEMENT BY THE COURT.
A. G Milner in 1899 entered into a contract with the Camden Lumber Company by which he agreed to supply the sawmill of the Lumber Company with logs. During the progress of this contract he became indebted to the company for goods and merchandise furnished by the company to him, and the company in November, 1900, recovered a judgment against him on this account for about $ 600. Afterwards Milner brought an action against the company, alleging that, in the contract he made with the company whereby he had agreed to keep its mill supplied with logs, it was stipulated on the part of the company that, to facilitate and assist him in getting out the logs, it would build a tramroad to certain cypress brakes from which he was to obtain logs for the mill, and that it would put iron rails on a part of such road, and furnish cars upon which to haul the logs, but that in these and other respects the company failed to carry out its contract, to his damage in the sum of $ 1,305, for which amount he asked judgment.
The company denied that it had failed to carry out its contract or that it was liable for the damages claimed. It further set up the judgment that it had previously recovered against the plaintiff, and asked that it "be taken as a counterclaim against any amount that might be found due plaintiff, and deducted therefrom. It was afterwards agreed by the parties that the question of using the judgment in favor of the company as a counterclaim against plaintiff should not be submitted to the jury, but should be submitted to the court after the verdict, and decided.
On the trial of Milner against the company the jury returned a verdict of $ 300 in favor of plaintiff.
Afterwards the question whether the judgment against Milner in favor of the company could be used as a counterclaim against the action of Milner coming on to be heard before the court, it found in favor of defendant, and held that the defendant was entitled to set up said judgment as a counterclaim. The court thereupon held that, inasmuch as the amount of the judgment formerly recovered in favor of defendant exceeded the verdict in favor of the plaintiff, the amount of the verdict should be credited on the judgment, and the defendant should rccover for all costs in the action brought by plaintiff. He accordingly credited the amount of the verdict on the judgment, and gave judgment in favor of defendant for costs of the action. Plaintiff appealed.
Judgment reversed and cause remanded.
G. W. Hays and Gaughan & Sifford, for appellant.
The judgment should not have been allowed as a counterclaim. Sand. & H. Dig. §§ 5861, 5868; 12 Ark. 102; 57 Ark. 209.
RIDDICK, J., (after stating the facts).
The only matter involved in this appeal is a question of costs. It is admitted by plaintiff that under the provisions of our statute the defendant company had the right to set off the judgment it had previously recovered against any judgment which might have been recovered by plaintiff against the company in this action,...
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