Townsend v. Standard Industries, Inc.
| Decision Date | 17 December 1962 |
| Docket Number | No. 5-2854,5-2854 |
| Citation | 363 S.W.2d 535,235 Ark. 951 |
| Parties | John TOWNSEND, Appellant, v. STANDARD INDUSTRIES, INC., and L. F. Ramer, Appellees. |
| Court | Arkansas Supreme Court |
J. Wesley Sampier and Jeff Duty, Rogers, for appellant.
Crouch, Blair & Cypert, Springdale, for appellees.
This is an action brought by appellant, John Townsend, in the Benton County Circuit Court to recover damages to which he alleged he was entitled by reason of a breach of contract by the appellee, Standard Industries, Inc.
The appellant, in his complaint, pleaded an oral agreement under which he stated that the appellant and appellee had operated from December, 1960 until April, 1961. He alleged the agreement was that he would move his sawmill onto certain lands owned by the appellee and would drag or haul timber from appellee's land after the timber had been felled by the appellee, and saw the same to size and dimension as directed by the appellee and that from December, 1960 to April, 1961 he had so performed.
The complaint states further:
'And that on or about the 20th day of April, 1961, the parties signed a written contract embodying the terms and provisions of their agreement under which they had been performing and complying, since sometime during the month of December, 1960, and which said written contract was prepared by the defendant, Standard Industries, Inc., a copy of which, marked Exhibit 'A', is attached hereto and made a part hereof fully as though set out word for word herein.'
It is the contention of the appellant that under the agreement appellee was to cut all the timber on what is roughly designated as the appellees' land comprising approximately 800 acres of timber land and appellant was to haul it to his mill, cut it to specification and sell it to appellees for a certain price.
The appellant's complaint alleges that after a lapse of time he was notified that no more timber would be bought and that he then moved his mill from the farm and brought this action for damages in the amount of $8,565.49 which he alleges he sustained by reason of the appellees' breach of contract.
The plaintiff, in his complaint, set out an oral agreement under which the parties operated from December, 1960 until April, 1961, as stated supra, but then stated that they had signed a written contract embodying the terms and provisions of their agreement.
The writing which appears as Exhibit 'A' and which was incorporated in the complaint as if set out word for word is as follows:
'I, John Townsend, agree to set my sawmill on Standard Industry Farm, Rt. 1, Rogers, Ark. I will pick up logs from the farm, haul them to mill & will cut lumber as desired for $4 per 100 board ft.
'I will cut, split & haul all white oak that will make Staves or heading for 2/3 amount received.
'/s/ John Townsend
'Standard Industries Farm
'/s/ Grover Fuller
'I, Grover Fuller, will check lumber each Saturday & move it from mill--and count Board feet----
'/s/ Grover Fuller'
The appellees [defendants below] filed a demurrer to the complaint on grounds it failed to allege facts which would constitute a cause of action, which the trial court sustained.
For the purpose of determining the sufficiency of the complaint on demurrer, the allegations contained in the pleadings must be taken as true. Moore v. North College Avenue Improvement Dist. No. 1 of Fayetteville, 161 Ark. 323, 256 S.W. 70. In the instant case it appears that the parties proceeded on the strength of some conversations in regard to the cutting of appellees' timber. In April, however, there was a writing signed by both the parties hereto and appellant's complaint sets forth the written document as 'embodying the terms and provisions of their agreement under which they had been performing and complying' which document is 'attached hereto and made a part hereof fully as though set out word for word herein.' Therefore, whatever had been discussed or contemplated by the parties is brought within the focus of a writing signed by the parties and the appellant has a cause of action only if this writing is a contract.
The rule that in law cases an exhibit will not be considered in determining the sufficiency of the complaint on demurrer is not applicable here because the alleged contract is made a part of the complaint 'as though set out word for word herein.' Therefore, the terms of the writing are the very essence of the complaint and is the basis on which the action is predicated.
This is not a case in which parol evidence may be introduced to contradict or vary the terms of the written contract because from the allegations it purports to be a complete contract embodying all the terms and provisions of the agreement, and the rule as stated in Graves v. Bodcaw Lumber Co., 129 Ark. 354, 196 S.W. 800 is that:
'* * * it is Hornbook law that all prior negotiations leading up to written contract are merged therein, and, further, that evidence of contemporaneous parol agreement is not competent to vary the terms of the written agreement.' [Citations omitted]
There is no allegation made that this is a severable contract so it must be considered as a whole.
From the terms of the writing, this is not a contract for the sale of all the output of the mill, nor is it a contract for the sale of all the timber on a given tract of land. Nothing in the writing, into which all the agreements have been merged, provides how much timber is to be cut nor when it is to be cut. There is no agreement to provide any specific logs for Townsend to cut, hence there is no mutual agreement. The quantity of logs to be cut is neither expressed nor implied in the alleged contract and thus cannot be ascertained.
The most that can be said is that the parties had agreed on a plan of operation but they did not make a contact.
As was said in El Dorado Ice & Planing Mill Co. v. Kinard, 96 Ark. 184, 131 S.W. 460:
'A contract to be enforceable must impose mutual obligations on both of the parties thereto. The contract is based upon the mutual promises made by the parties; and if the promise made by either does not by its terms fix a real liability upon one party, then such promise does not form a consideration for the promise of the other party. As is said in the case of St. Louis, I. M. & S. Ry. Co. v. Clark, 90 Ark. 504, 119 S.W. 825: 'mutuality of contract menas that an obligation must rest on each party to do or permit to be done something in consideration of ...
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