Spencer Lumber Co. v. Marsh

• Decision Date: 05 June 1911
• Citation: 138 S.W. 479
• Parties: SPENCER LUMBER CO. v. MARSH.
• Court: Arkansas Supreme Court

138 S.W. 479

SPENCER LUMBER CO. v. MARSH.

Supreme Court of Arkansas.

June 5, 1911.

Appeal from Circuit Court, Polk County; Jefferson T. Cowling, Judge.

Action by Chester Marsh against the Spencer Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Counsel for appellee states the facts as follows: The appellant is engaged in the manufacture of lumber at Vandervoort, Polk county, Ark., and owns and operates a planer and several sawmills in that vicinity. At one of its mills Ed Mathis was in charge, and receiving for his services $5 and $5.50 per thousand feet for sawing and stacking the lumber at the millyard, the appellant to furnish the timber. About May 1, 1910, Ed Mathis hired appellee, Marsh, to haul logs at the mill of which he had charge at a certain price per thousand feet and during that month his services for himself, his minor son, and three or four men he had driving his teams amounted to $208.53. The pay day of the appellant Spencer Lumber Company was the first of each month; that is, the wages for the month of May would be paid the 1st of June. May 27th the appellee quit working, and a statement or an order on the Spencer Lumber Company was given him by Mathis for the amount due him, and appellee then went to Oklahoma where he had another job. This order was sent by mail to the appellant by appellee June 10th, demanding payment, was received by the appellant, and no reply made to appellee. Two other letters were written the appellant by the appellee during June, and in neither case did the appellant reply to these letters. On July 1st or 2d appellee took the train at Stanley, Okl., where he was living, and went to Vandervoort to learn of the appellant why he did not receive his pay. He had an interview with Mr. Spencer, the manager of the appellant, and discussed the matter with him, and it ended with Mr. Spencer suggesting that appellee go out and see Mr. Mathis. Appellee went out to see Mr. Mathis, who was working about 18 miles from Vandervoort. Mathis returned to town with appellee, and together they went to see Spencer, and at this meeting was the first time Spencer told appellee that he would not pay him, and the reason given was that Mathis owed the Spencer Lumber Company between $100 and $200, and that it was due the company from a former set where Mathis had worked for it. On July 4th appellee filed suit in the justice court in attachment, and asked that a laborer's lien be declared on the lumber, which at the trial was done and a judgment for the amount against both the Spencer Lumber Company and Ed Mathis was rendered in favor of the plaintiff. The Spencer Lumber Company filed its affidavit for appeal, made bond, the appeal allowed and lien on the lumber released by the court, and lumber delivered to the Spencer Lumber Company. The case was tried anew in the circuit court, and a judgment rendered in favor of the appellee for $208.53, and from this judgment the Spencer Lumber Company appeals to this court. There is no denial that $208.53 is the amount due Marsh for his labor, and that the lumber attached was sawed from the logs hauled by Marsh and his teams.

Elmer J. Lundy, for appellant. W. Prickett, for appellee.

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

The court in effect instructed the jury that, before appellee could recover, they must find that there was a contract, express or implied, with appellant to pay him, or else that appellant, knowing that Mathis had employed appellee, ratified his act in so doing.

There was evidence to warrant the court in submitting these questions of fact to the jury, and evidence to sustain the finding and verdict of the jury. Mathis had a contract with appellant for cutting timber. He informed appellant that he was going to employ the appellee. He said "it was understood that appellant would pay all the men he had at that set." The appellant told him "to go ahead, and they would pay." He did not have any contract of that kind, and did not tell appellee that he had a contract of that kind. He did not know that appellant just came out, and told him that they would pay his pay roll, but they always had paid it. He supposed they gave checks to each individual man and charged it to his, Mathis' account. Mathis was negotiating for the purchase of a tract of timber land for appellant. He testified concerning this in part as follows: He informed appellant that he, Mathis, had been telling appellee that appellant was going to buy the timber. "Then they [appellant] said, `Ed, we are going to buy this tract of timber. You need it, and it looks like we have got to have it, and you can tell the man' [meaning appellee] to go ahead." Mathis had appellee there "with a bunch of teams" to haul the timber. Mathis further testified: Appellant "always paid" his "pay rolls before." Appellee "came the second month and went to logging." "When" he turned the pay roll in, it was a pretty big pay roll,...