Newhouse Mill & Lumber Company v. Keller

Decision Date15 April 1912
Citation146 S.W. 855,103 Ark. 538
PartiesNEWHOUSE MILL & LUMBER COMPANY v. KELLER
CourtArkansas Supreme Court

[Copyrighted Material Omitted]

Appeal from Lincoln Circuit Court; Antonio B. Grace, Judge affirmed.

STATEMENT BY THE COURT.

Appellee alleged that he entered into a contract with appellant whereby, for a consideration of $ 500 paid by appellee to appellant and the agreement on his part to move his mill from Monticello, in Drew County, to Gould, in Lincoln County, and to erect same on the land of appellant and to saw timber appellant agreed to furnish appellee with timber estimated at 4,000,000 feet, for which appellee was to pay $ 10 per thousand feet. Payments were to be made at the end of each month. The timber was to be delivered at appellee's mill at the rate of at least 6,000 feet per day, and appellant was to pay appellee $ 10 per day for every day that appellee could not run his mill by reason of the failure of appellant to supply him with logs. If the appellee refused to settle for timber according to the contract, the appellant had the option to declare the contract void.

Appellee moved his mill at an expense of about $ 1,200, and operated same under the contract until September, 1909, when the appellant refused to furnish him timber under the contract, but demanded of appellee the sum of $ 12.50 per thousand feet. He alleged that he ceased operating his mill, and at that time the appellant had only furnished him 250,000 feet under the contract; that he could only secure timber similar to that called for by the contract at $ 12.50 per thousand, making a loss to him of $ 2.50 per thousand on 3,750,000 feet, amounting to $ 9,375. He asked for damages for the expense of moving his mill in the sum of $ 1,200 and for $ 9,375 for the value of timber in excess of the contract price, making a total of $ 10,575, for which he prayed judgment.

The appellant admitted that it entered into a contract with appellee, but alleged that the contract was reduced to writing but not signed. It set up that the contract was as follows:

"For and in consideration of the sum of $ 500 cash in hand paid by the party of the first part, the receipt of which is hereby acknowledged, and the mutual obligations assumed by each to this contract, it is agreed that the party of the first part hereby agrees to sell and deliver, and by these presents does sell, to the party of the second part, at Gould, Ark., all of the merchantable white oak, red oak, and ash logs which the hereinafter described lands owned or controlled by the party of the first part will produce, namely: (Then follows a description of the lands, and character and dimensions of timber to be cut).

"It is further agreed that the party of the first part shall deliver to the party of the second part, and the party of the second part shall accept, all such logs produced from the above described lands at the rate of not less than six thousand (6,000) feet per day and not more than ten thousand (10,000) feet per day until all the logs shall have been cut therefrom.

"The party of the second part reserves the right to order the discontinuing of the cutting of said timber in case of a breakdown in his mill or an accident to the mill over which he has no control, but in no event shall such discontinuance last for more than days.

"It is also agreed that the measure of damages, as against the party of the first part, in case said party of the first part fails to deliver six thousand (6,000) feet of logs per day, if a delay proves expensive to party of the second part, the sum of $ 10 per day for every day such delay occurs, exclusive of Sundays; and the failure of the party of the second part to accept the logs as delivered shall operate as a cancellation of this contract, at the option of the party of the first part.

"It is agreed that all logs shall be scaled by a party to be agreed upon by both parties hereto, provided that such an agreement can be reached, but, in case of a disagreement, each party is to choose a scaler; the two so chosen shall choose a third, whose scale is to be accepted as final, and all differences shall be adjusted according to his judgment and his scale.

"The party of the second part agrees to pay the party of the first part for all logs delivered during the month upon the 10th day of the following month at the rate of $ 10 per thousand for the merchantable scale."

It is conceded in the answer that the contract contemplated the furnishing of timber from about 1,800 acres; that both parties entered upon the contract as above set out and operated under its terms until about September 27, 1909, when it is alleged by appellant that the above contract was abrogated by mutual agreement, and a new contract was entered into of a totally different nature, and that all differences arising out of the old contract were adjusted at the time the new contract was entered into. The appellant then set out the last contract, by which the appellant, the party of the first part, agreed to deliver to the appellee, the party of the second part, white and red oak logs of a merchantable grade for a consideration of $ 12 per thousand feet. The party of the second part agreed that all the oak logs were to be manufactured into ties of certain dimensions except such as the party of the second part might desire for the manufacture of other products. For the manufacturing of the ties the first party was to pay the second party ten cents apiece, except for rejected ties. The contract then provided for a basis of settlement at the price of $ 12 per thousand feet log scale. The latter agreement was to be in effect until January 1, 1910. The party of the first part was to pay the party of the second part for white oak switch ties of certain dimensions the sum of $ 3.20 per thousand feet board measure.

The appellant further alleged that appellee and appellant operated under the terms of the first contract, set out above, until appellee "declined to accept the logs tendered him by the company, and that, exercising its option under the contract, the company declared the contract cancelled, and that the sole reason for the discontinuance of the contract was because Keller refused to live up to the terms thereof, and that there was no breach on the part of the company."

The suit was instituted March 24, 1910. The answer was filed August 3, 1910, and on September 15, 1911, appellant moved for a continuance, setting up that a certain witness, if present, would testify that he sold logs to the appellee, such as were called for by the contract between appellant and appellee, for a price of $ 6 to $ 8.50 per thousand feet, and that appellee could have procured a large amount of logs at that price during and at the time he alleged that appellant had refused to furnish him logs. Appellant alleged in the motion "that it had used all the diligence to procure the attendance of said witness at this trial, but that he lives in a distant county, and it has not been able to locate him. As it is informed, he (naming him) has been travelling and away from the State, and the information as to his knowledge of the facts came too late to either ascertain his whereabouts or secure his presence at this trial, or to secure his deposition."

The court overruled the motion for a continuance. The cause proceeded to a hearing before a jury, and, after the jury heard the evidence and the instructions of the court, they returned into court a verdict in favor of the appellee in the sum of $ 2,500 for difference in the contract price and market value of logs not delivered as specified in instruction No. 11.

Judgment was rendered in appellee's favor for that amount to reverse which appellant duly prosecutes this appeal. Other facts to be stated in the opinion.

Judgment affirmed.

C. P. Harnwell, for appellant.

1. The preponderance of the evidence was clearly against appellee. The tenth instruction is not only ambiguous and misleading, it in effect authorized the jury to accept the testimony of one man and ignore the testimony of ten others unimpeached. 20 Ark. 607; 77 F. 970; 76 Am. Rep. 990; Id. 626; 51 So. 663; 114 P. 442; 119 N.Y.S. 180; 49 So. 650; 149 Ill.App. 298; 82 N.E. 407; 140 Ill.App. 454; 115 N.Y.S. 98; 138 Ill.App. 455; 109 N.Y.S. 1008; 50 Mich. 573.

2. The verdict is excessive. 29 Ark. 49; Id. 380; 26 Ark. 365; 46 Ark. 141.

Coleman & Gantt, for appellee.

1. There was no error nor abuse of discretion in overruling the motion for a continuance, which shows on its face that the witness wanted was out of the county and his attendance could not have been compelled. The motion, moreover, does not conform to the law. 96 Ark. 354; 67 Ark. 47; Id. 290; 85 Ark. 413; 71 Ark. 62.

2. The verdict of a jury will not be disturbed if there is any evidence sufficient to sustain it. 97 Ark. 438, 442; Id. 486; 67 Ark. 531; 74 Ark. 478.

3. The tenth instruction given by the court is correct. 37 Ark. 580; 17 Cyc. 761, and cases cited; 14 Enc. of Evidence, 84, 89; 87 Wis. 607; 58 N.W. 1031; 17 Cyc. 776; 6 Words & Phrases, 5517; 174 Mass. 580; 55 N.E. 318; 242 Ill. 312; 89 N.E. 1008; 89 N.E. 857.

4. The verdict is not excessive. The testimony would have sustained a verdict for $ 7,500. If the form of the verdict was objectionable, such objection should have been made when it was returned. 38 Cyc. 1904; 138 Ind. 252; 36 N.E. 1094; 149 Ind. 264; 49 N.E. 33; 64 N.E. 331.

WOOD, J. KIRBY, J. dissents.

OPINION

WOOD, J., (after stating the facts).

1. The court did not err in overruling the motion for a continuance. Such motions are addressed to the discretion of the trial court; and unless they have clearly abused such discretion in refusing to grant a continuance, this court will not reverse the...

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