Western Coal & Min. Co. v. Hollenbeck

• Decision Date: 12 December 1903
• Citation: 80 S.W. 145
• Parties: WESTERN COAL & MIN. CO. v. HOLLENBECK.
• Court: Arkansas Supreme Court

80 S.W. 145

WESTERN COAL & MIN. CO. v. HOLLENBECK.

Supreme Court of Arkansas.

December 12, 1903.

Appeal from Circuit Court, Sebastian County, in Chancery; Styles T. Rowe, Judge.

Suit by the Western Coal & Mining Company against E. A. Hollenbeck. From a decree for defendant on his set-off, plaintiff appeals. Reversed.

Ira D. Oglesby, for appellant. T. B. Pryor, for appellee.

BUNN, C. J.

This is a suit on account by the Western Coal & Mining Company against E. A. Hollenbeck in the circuit court of the Greenwood District of Sebastian county originally, and on change of venue to the Ft. Smith District of said county. The defendant answered, presenting set-offs, and asked that the cause be transferred to the chancery docket, which was accordingly done. On the hearing it was, in effect, admitted that the sum of $855.45 was owing to the plaintiff, and that the defendant was entitled to set-offs amounting to the sum of $350.54, plus $25 (the rent of the Hunt place) — $375.54, leaving a balance in favor of plaintiff amounting to the sum of $484.91. But three of the items of defendant's set-off are controverted by the plaintiff, to wit, $18 for due-bill, one for $360 for three years' feeding of horse, and, third, for $360 for three years' feeding of mare. There is no sufficient evidence to sustain the $18 item, nor even to explain what the same is for. It seems not to have been considered. The chancellor rendered the following decree: "It is therefore considered, ordered, adjudged, and decreed by the court that the defendant, E. A. Hollenbeck, do have and recover of and from the plaintiff, the Western Coal & Mining Company, the sum of one hundred thirty-four and 10/100 dollars, and all his costs laid out and expended, together with six per cent. per annum from date of judgment, for which execution may issue; to which finding and judgment of the court the plaintiff at the time excepted, and prayed an appeal to the Supreme Court, which was granted." It appears from the record that for a period of five or six years beginning in 1892 the defendant was in the employ of plaintiff company as outside foreman, whatever that may mean, and that during that time the defendant, with one A. T. Douglass, under the firm name and style of Hollenbeck & Douglass, was conducting a livery stable business, occupying a livery stable building and grounds belonging to the plaintiff, paying no rent therefor; that during a portion of the time a horse of plaintiff was kept in said livery stable without anything being said as to the payment therefor, or how much; that during a portion of the time a mare belonging to plaintiff was kept in said stable. These horses were used by the defendant, but it is not definitely shown whether when he was acting for himself or in the employment of plaintiff or both.

The plaintiff's contention on the trial was that there was no charge to be made for feeding the horses; that the occupation of the stable property by Hollenbeck & Douglass without charge was the consideration; and...