Woodard v. Felts
| Decision Date | 23 January 1991 |
| Docket Number | No. 22051-CA,22051-CA |
| Citation | 573 So.2d 1312 |
| Parties | James Patrick WOODARD, Plaintiff-Appellee, v. Mason FELTS, Defendant-Appellant. 573 So.2d 1312 |
| Court | Court of Appeal of Louisiana — District of US |
Campbell Campbell & Johnson by John T. Campbell, Minden, for defendant-appellant.
Randy D. Elkins, Minden, for plaintiff-appellee.
Before LINDSAY and HIGHTOWER, JJ., and PRICE, J. Pro Tem.
Mason Felts, a landowner, appeals a decision of the trial court which found that he breached a contract with Patrick Woodard, a consulting forester, and awarded damages to Woodard. For the reasons hereinafter cited, we amend the judgment of the trial court and, as amended, affirm.
We find the record to show this dispute to rise out of the following summary of events. In August 1988, Mr. Felts, a 75 year old man who had no previous experience in selling timber, decided to investigate the feasibility of selling the merchantable timber on his homeplace in Webster Parish. He testified that he was somewhat familiar with the board foot price timber would bring at this point in time but he thought he should get several different estimates of the quantity of merchantable timber existing on his tract of land. For this purpose, he contacted three parties in the timber industry. The first one contacted was Mike Merritt, a timber buyer, who gave Felts a fixed price he would pay for the timber measuring 12 inches and above in diameter measured at a 4 foot height. The other two persons contacted were Plaintiff, Woodard, and Curtis McDaniel, both professional foresters, who generally do not purchase timber but provide the usual forestry services to landowners.
Woodard met with Felts on August 16, 1988, at which time they drove around the subject tract and Felts showed Woodard the boundaries. Woodard contends and so testified, that he explained to Felts that the customary method of a forester to assist a landowner in marketing timber is for the forester to recommend whether to clear cut or use selective cutting of trees over a certain diameter, and then for the forester to mark each tree which is to be cut. The forester then calculates the approximate amount of the several types of product which will result from the cutting (poles, saw logs or pulpwood-either pine or hardwood). Woodard contends he further explained that the forester would submit for the owner's approval a letter to be sent to timber purchasers in this area soliciting bids for the timber. Woodard further contends that at the conclusion of their conversation he asked Felts if he wanted him to begin the process of "marking" the trees and that Felts told him to go ahead.
Felts testified that he was under the impression that Woodard was to only "cruise" the tract, as this term is used in the industry, to give him an estimate of how much timber was on his tract and that he did not intend to engage Woodard's services until he received the estimate of quantities from Curtis McDaniel, the other forester which he had contacted for the same purpose.
Felts further testified that he told both Woodard and McDaniel that he was leaving within a day or so for a visit to Missouri and gave both men the phone number at which he could be reached so that each could call and give him their estimates of quantities. He contends he intended to use the services of the one that estimated the largest quantity. Felts admits that he did not tell either forester that he had contacted the other for similar information. He also admits that he knew he would be expected to pay a commission of ten per cent of the total sale price to the forester who he authorized to solicit bids on the timber if a sale was consumated.
As things worked out, Woodard over several weeks proceeded to mark the timber he thought was to be cut with the blue paint which is usually the color used to designate trees to be cut.
McDaniel also marked the timber in a different color apparently shortly after Woodard had completed his marking. McDaniel called Felts in Missouri and gave him his calculation of approximate quantities and Felts being satisfied with the calculations told him to go ahead and solicit bids. A sale resulted from this solicitation bringing a total of $67,236.00. A commission was paid by Felts to McDaniel based on this amount.
Woodard, who failed to call Felts in Missouri after completing his calculation of quantities because he had misplaced the telephone number given him, first learned of McDaniels employment after Felts returned home from Missouri. Woodard informed Felts that he had been engaged to perform all of the usual forestry services in marketing the timber at the initial meeting with Felts and that he was entitled to be paid the full commission which he would have earned had he been permitted to complete the work intended. Attempts at settlement failed and Woodard filed this action seeking damages for an alleged breach of contract.
The trial court found in Woodard's favor, reasoning that although Felts did not comprehend all of the specifics of the agreement outlined by Woodard, there was no doubt that Woodard in good faith thought that Felts understood the specifics and that Felts had agreed to the contract. The court then awarded damages to Woodard, basing the ten percent calculation on Woodard's tally of 292,000 board feet. McDaniel's calculation was 373,016 board feet which was the quantity sold to the bidder whose bid was accepted.
On appeal, Felts contends that Woodard did not sustain his burden of proof by showing the existence of the alleged oral contract by the testimony of one witness and other corroborating circumstances. Woodard contends that he sustained his burden of proof because his testimony is the required testimony of one witness and the other corroborating circumstances were shown by either the testimony of another forester, Donald R. O'Neal, Jr., or the marks made by Woodard on the trees.
Our review is under the manifestly erroneous, clearly wrong standard. Rosell v. ESCO, 549 So.2d 840 (La.1989).
We agree with the trial court's conclusion that the alleged contract was one for personal services to be rendered by a consulting forester. This conclusion pretermits consideration of whether a writing was required and the admissability of parol evidence. Compare La.Civ.Code Arts. 463, 1832, 1839 & 2440 regarding standing timber and sale of immovables.
However, we do not agree that a contract was proved or existed and any such finding by the trial court is clearly wrong.
First, Woodard did not sustain his burden of proof. The party who asserts an obligation must prove it by a preponderance of the evidence. La.Civ.Code Art. 1831; Bell v. Badger Dredging, Inc., 420 So.2d 1197 (La.App. 5th Cir.1982); Bordlee v. Pat's Construction Company, Inc., 316 So.2d 16 (La.App. 4th Cir.1975). La.Civ.Code Art. 1846 provides:
When a writing is not required by law, a contract not reduced to writing, for a price or, in the absence of a price, for a value not in excess of five hundred dollars may be proved by competent evidence.
If the price or value is in excess of five hundred dollars, the contract must be proved by at least one witness and other corroborating circumstances.
Although a...
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27,241 La.App. 2 Cir. 8/23/95, Kilpatrick v. Kilpatrick
...v. Harvey, 408 So.2d 946 (La.App. 2d Cir.1981). This proof may not, however, result from the plaintiff's own actions. Woodard v. Felts, 573 So.2d 1312 (La.App. 2d Cir.1991) (forester's markings on trees not corroborating evidence of an oral agreement with the landowner to market timber); Wi......
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... ... However, and to its detriment, CAP relied on those representations. Considering such, plaintiff is entitled to damages. See generally, Woodard v. Felts, 573 So.2d 1312 (La.App. 2 Cir.1991)(Forester was allowed to recover damages under theory of detrimental reliance when both parties were in ... ...
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...markings on trees was not corroborating evidence of an oral agreement with the land owner to mark timber in Woodard v. Felts, 573 So.2d 1312 (La.App. 2d Cir.1991). On the other hand, a third person's eyewitness account of the making of the contract qualifies as corroborating evidence. Denni......