Mine La Motte Lead & Smelting Co. v. Consolidated Anthracite Coal Co.

• Decision Date: 16 December 1907
• Citation: 107 S.W. 174
• Parties: MINE LA MOTTE LEAD & SMELTING CO. v. CONSOLIDATED ANTHRACITE COAL CO.
• Court: Arkansas Supreme Court

107 S.W. 174

MINE LA MOTTE LEAD & SMELTING CO. v. CONSOLIDATED ANTHRACITE COAL CO.

Supreme Court of Arkansas.

December 16, 1907.

Appeal from Circuit Court, Johnson County; William L. Moose, Judge.

Action by the Consolidated Anthracite Coal Company against the Mine La Motte Lead & Smelting Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Appellee sued appellant in the Johnson circuit court for a balance claimed of $795.21. The claim was for coal furnished. An itemized statement of the account is attached to the complaint as an exhibit; and among the credits was one for the rent of a core drill and diamonds to the amount of $1,320. The defendant admitted furnishing the coal, but said it was full of slate and dirt, and not worth the contract price. It claimed a credit of $1,000 for this defect. It also claimed that the rent for the core drill was $4,070. It also filed a statement of account of many items, claiming a balance due it by appellee of $3,626.14. It made the answer a cross-complaint, and asked for judgment for the amount it claimed was due. The plaintiff introduced the following evidence: A. A. Daugherty's deposition, as follows: "Was president and general manager of defendant in April, 1904. George Howard was superintendent of defendant company, and continued until end of 1904. The drill and diamonds were shipped to the plaintiff in April or May, 1904. I authorized it. Ten dollars for each day in use was the rent agreed upon." George Howard testified: "I was superintendent of the defendant company during the whole of the year 1904. Daugherty talked with me about renting the core drill to the plaintiff company, and asked me if I thought $10 per day for each day it was in use would be a fair price; and I said `Yes.' He then directed me to ship the drill to the plaintiff." On cross-examination witness stated that he had never rented a drill, and did not know what would be a reasonable rental for drill and diamond. Other evidence was introduced by the plaintiff tending to corroborate the testimony of the witness Daugherty that the rent of the drill was to be $10 per day for each day that the drill was used. The defendant introduced the following evidence: "H. F. Albers was president of plaintiff company in 1904. Was 41 years old; a banker of New York City. The defendant leased a drill to the plaintiff in that year. The latter was to pay $10 per day for every day, except Sundays, from the day it reached Spadra till it placed the diamonds on the cars to return it. It arrived, but does not remember the date. As president of the plaintiff, he made the contract to lease the drill. The plaintiff agreed to pay for the drill all the time it retained it, and not merely for the time it was employed." Other evidence was introduced tending to corroborate Albers that the rent of the drill was to be $10 per day, except Sundays. The other testimony is sufficiently referred to in the opinion. The plaintiff recovered a judgment for $370.67, and the defendant appealed.

John C. Brown and Atkinson & Patterson, for appellant. Cravens & Covington, for appellee.

HART, J. (after stating the facts as above).

Counsel for appellant assigns as error that he was not allowed to open and close the argument, and...