Moraz v. Melton

• Decision Date: 02 February 1925
• Docket Number: 144
• Citation: 268 S.W. 41,167 Ark. 629
• Parties: MORAZ v. MELTON
• Court: Arkansas Supreme Court

268 S.W. 41

167 Ark. 629

MORAZ v. MELTON

No. 144

Supreme Court of Arkansas

February 2, 1925

Appeal from Franklin Circuit Court, Ozark District; James Cochran Judge; affirmed.

STATEMENT OF FACTS.

C. L Melton sued R. A. Moraz and John Dunkin to recover $ 308.66 alleged to be due for coal sold by the plaintiff to the defendant. The plaintiff also obtained a writ of attachment on the ground that the defendants were nonresidents and were about to remove their property out of the State without leaving sufficient property therein to pay their debts. This attachment was levied upon certain personal property belonging to R. A. Moraz.

The defendants denied that they were indebted to the plaintiff in any amount whatever for coal sold by him to them, or either of them. By way of cross-complaint they alleged that they were the owners of the drilling equipment upon which the writ of attachment had been levied, and claimed damages on account of their drilling operation having been suspended by the seizure of the property under it.

The case was tried before the circuit court sitting as a jury. The plaintiff was the principal witness for himself. According to his testimony, he was in the coal business in 1921, at Alix, Arkansas, and sold to the defendant, R. A Moraz, three cars of coal, and there was due and unpaid on the purchase price of two cars of said coal $ 303.66. These two cars of coal had originally been sold to a corporation and the original bills of lading show that they had been consigned to the said corporation. The first car was shipped October 29, 1921, and the amount due on it was $ 166.66. The second car was shipped November 25, 1921, and the amount due on it was $ 142. When the second car arrived at Mulberry, Arkansas, the plaintiff called the station agent by telephone and told him to hold the car until his arrival. Upon the arrival of the plaintiff at Mulberry, he refused to let Moraz, who represented the corporation to which the coal was consigned, unload the car. Moraz said, "If you will let me have this car of coal, I will see that you get paid for your coal if it takes the last shirt off my back." The plaintiff relied on the assertion, and let Moraz have the car of coal. The testimony of the plaintiff is in narrative form in the bill of exceptions, and we copy from it the following:

"That he would not have given Moraz permission to unload the second car of coal shipped, which was evidenced by the bill of lading marked 'Exhibit B,' the same being one of the two cars the price of which is being sued for herein, unless Moraz had agreed to pay for all the coal witness had sold the Dunkin-O'Brien Oil Company, and also to pay for this particular car. That said Moraz repeatedly agreed to pay for all the coal he (Melton) sold the Dunkin-O'Brien Oil Company. Witness asserted that he let Moraz have the car of coal--the one he promised to pay for--and at the same time promised to pay for all the coal the Dunkin-O'Brien Oil Company owed for. The said car of coal that Moraz agreed to pay for at the time he agreed to pay for all the coal the Dunkin-O'Brien Oil Company had received was sold to Moraz for the same figure it was sold to the oil company for, i. e., it was sold to the Dunkin-O'Brien Company for $ 142.50, and that was the price Moraz was to pay for it.

"We copy from the redirect examination of the plaintiff the following:

"Witness stated that he looked to Moraz for the amount due on the coal; that said Moraz agreed to pay for it. That, in the Farmers' and Merchants' Bank of Mulberry, Moraz said if he (Melton) would let him unload the car of coal then on the siding in Mulberry, he (Moraz) would pay for all the coal the Dunkin-O'Brien Company had received; that Mr. Henry Moore was called to witness the agreement after the agreement had been made."

R. A. Moraz was the principal witness for the defendants. He denied having promised to pay for the coal, as testified to by the plaintiff, and also gave testimony as to the amount of damages suffered by the levying of the attachment on his drilling equipment.

The circuit court found for the plaintiff in the sum of $ 142, and judgment was rendered against the defendant, R. A. Moraz, for said sum. The case is here on appeal.

Judgment affirmed.

Joseph R. Brown, for appellant.

Findings of fact by a court, the same as by a jury, to stand on appeal must be based on substantial evidence. 158 Ark. 119; 126 Ark 318; 111 Ark. 449; 118 Ark. 349; 102 Ark. 435; 150 Ark. 43; 127 Ark. 609; 65 Ark. 278. Conceding that there was a promise to pay by appellant, the promise was not legally enforceable because within the statute of frauds. While this statute was not pleaded, it is not necessary to do so. 19 Ark. 39; Id. 23; 141 Ark. 458; 129 Ark. 253. After the loading of the car and issuance of bill of lading title to the coal passed to the consignee named therein. 115 Ark. 221; 104 Ark. 215; 118 Ark. 117; 141 Ark. 161; 38 Ark. 414. Plaintiff would thereafter only have power to stop delivery in case of the insolvency of the consignee. Appellee however knew the condition of the consignee at the time shipment was made, and there was no change...