Street v. Shull

• Decision Date: 03 April 1933
• Docket Number: 4-2953
• Parties: STREET v. SHULL
• Court: Arkansas Supreme Court

58 S.W.2d 932

187 Ark. 180

STREET v. SHULL

4-2953

Supreme Court of Arkansas

April 3, 1933

Appeal from Lonoke Circuit Court; W. J. Waggoner, Judge; affirmed.

Judgment affirmed.

Claude V. Holloway and Geo. W. Emerson, for appellant.

Trimble Trimble & McCrary, for appellee.

OPINION

BUTLER, J.

On November 8, 1930, the appellant, Dr. H. N. Street, brought suit in the court of common pleas in Lonoke County against the appellee, O. L. Shull, to recover for professional services as a physician, the same having been rendered at various times between February 13, 1920, and July 23, 1929. The appellee filed an answer and cross-complaint, in which cross-complaint he alleged that Dr. Street was indebted to him in the sum of $ 360, the price of an automobile purchased from him by one Woodall which appellant agreed to pay by deducting from Woodall's salary (Woodall was then in the doctor's employ) the sum of $ 15 twice a month and pay the same to the appellee. He alleged that the doctor was further indebted to him in the sum of $ 846.54 as expense incurred in removing railroad rails from one location to another, which expense the doctor had agreed to pay.

This cause reached the circuit court, where the appellant demurred to that portion of the cross-complaint relative to the Woodall matter upon the ground that the same was within the statute of frauds and barred by the statute of limitation. The demurrer was never passed upon by the court, and the appellant filed a reply to the cross-complaint denying the alleged agreement for the payment of the automobile, and that appellant had collected any sums from Woodall to be applied to the purchase price thereof, and pleaded in bar the statute of frauds and that of limitation; and as to the claim for removing the railroad equipment he alleged that the same was removed under a contract which limited the recovery to the sum of $ 1.

On the trial of the case, it developed that the appellant and the appellee at one time had been interested in a short line railroad; that, in addition to appellee's interest in the railroad, he owned several miles of spur track which led to a sawmill he then owned and operated, and this spur track was used to haul lumber manufactured at the sawmill to the short line railroad. Appellee sold his interest in the railroad to the appellant, and agreed that the latter should continue to use the spur track for a time, and that upon the request of appellee the appellant was to take up and move the rails to a certain point on the main line of the Rock Island Railroad. At the time of these transactions a written contract was entered into between the two containing numerous provisions which have no relevancy to this lawsuit except that part which is as follows:

"That said second party agrees to, at the termination of the free use of the above mentioned rails, take up and deliver said rails from the terminus of the rails leased from the C. R. I. & P. R. R. Co. at or near Glahe's sawmill to a point at sawmill of said party of the first part known as the Seaton Mill on T. M. Fletcher's place near the Wat Worthen Railroad Dump, together with all attachments thereto, to said party of the first part, f. o. b. cars, McCreanor, Arkansas at second party's own expense, and, if said second party neglects or fails to deliver said rails when demand is made therefor by the said first party, his agents or assigns, reserves the right to enter upon said property and take up and remove same at the actual costs and expense of said second party and pay to said first party, by reason of his failure, refusal or neglect to carry out this contract, the sum of $ 1 as liquidated damages for said refusal or delay."

Appellee was permitted to testify over the objection of appellant as to the request made that the rails be moved as provided in the contract and the refusal or failure of the appellant to comply therewith, that he was obliged to remove them himself at an expense of $ 846.54, an itemized statement of which he introduced. Over appellant's objection appellee was also permitted to testify as to what the mutual understanding between them was regarding the removal of the rails, and that it was their understanding that if he (appellee) was obliged to move the rails he was to be paid the expense thereof, and if he (the doctor) failed to move the rails the appellee was to be paid $ 1 in addition to the actual costs; that this was their understanding as to what was meant by the $ 1 as stipulated damages. Appellee was permitted to testify without objection that he sold an automobile to Ed Woodall, who at the time was working on the railroad which then belonged to Dr. Street, and the latter agreed to pay $ 30 per month until the automobile had been paid for; that, subsequent to this agreement between the two, Dr. Street informed him that he had collected the price of the automobile from Woodall and that no part of this had been paid to him. He further testified that he was not informed by Dr. Street as to his indebtedness on the doctor's bill until some time in 1927 when the controversy arose between them over some bills owing by the doctor to the appellee, and then it was that mention was made of the doctor's bill, and the appellee informed the doctor that he was ready to settle with him, but that nothing further was done. He admitted that he owed the doctor the amount sued for, subject to the set-offs, but that the doctor owed him the difference between the amounts he had collected for the automobile and the expense for moving the rails.

Appellant testified denying having made the agreement relative to the Woodall matter or that he had collected any money from Woodall for the appellee on the purchase...