United Walnut Co. v. Courtney

Wood, J., (after stating the facts). There was ample evidence to sustain the verdict that appellant had entered into a contract with appellee as alleged in the complaint. Appellant contends that there was no evidence to support the .verdict as to the amount due appellee, basing its contention on the ground that, according to the testimony of appellant’s bookkeeper and a statement prepared by him from tally sheets, books and papers of appellant, Knowlton was indebted to appellant after charging him with the sums paid him on lumber and giving him credit for the full purchase price of the lumber in the sum of $688.75. But the testimony of the bookkeeper himself shows that several errors were made in entries on the books. The jury were warranted in not treating the statement prepared by appellant’s bookkeeper from the books and papers of appellant showing Knowlton was indebted to appellant in the sum of $688.75 as conclusive evidence of the fact. On the other hand, there is testimony in the record tending to prove that appellant received of Knowlton under the contract between appellant and appellee 18 cars of lumber. The first two cars contained 31,870 feet, which netted appellee, and for which he received credit, $469.97. This left sixteen cars to be accounted for. There is some dispute in the evidence as to whether appellant received 17 or 18 cars from Knowlton. But, even if only seventeen cars were received by appellant, the testimony shows that, after deducting the credit for the two cars which appellee received, there remained 173,338 feet. The average price of the lumber according to prices to be paid for the different grades would be over $25 per thousand. At $25 per thousand the total amount for the lumber would be $4,333.45. There was evidence tending to prove, and the jury might have found, that appellant advanced to Knowlton on the above lumber the sum of $17 per thousand. This would have left ample margin for the payment of the balance due on the note of $1,030, which, under the contract between appellant and appellee, was to be paid to appellee until the note was paid. There was testimony on behalf of appellant tending to prove that it had paid Knowlton, not only the $17 per thousand advance, but the full purchase price for the lumber. But, on the other hand, there was testimony on behalf of appellee tending to prove that the advance of $17 per thousand was all that Knowlton received, that the payments that were made to him were part of this advancement at $17 per thousand. After considering all the testimony in the record, we can not say that the evidence conclusively proves that appellant was not indebted to appellee in the amount of the verdict. Under all the evidence in the record, it was a question for the jury. We have noted carefully the criticism of appellant upon the instructions given by the court on its own motion. We find no reversible error in these instructions. They fully and fairly submitted the issues raised by the pleadings, and we think correctly presented the respective contentions which the evidence tended to establish. The legal principles involved we do not deem of sufficient general importance to warrant setting out and discussing the instructions in detail. The instructions in fact did not announce any principle of law, but were simply a submission of the respective contentions of the parties on the evidence adduced by them, leaving the jury to determine which was correct. The court did not err in refusing appellant’s prayer number 2, for this was fully covered by prayer number 1 of appellant, which the court granted. There was,error in refusing appellant’s práyer number 3. Conceding, as we must, since the jury has so found, that there was such a contract between appellant and appellee as set up in the complaint, such contract, as we construe it, was in no sense collateral, but an original undertaking upon the part of appellant with appellee. The contract was based upon a sufficient, indeed a valuable, consideration, for appellee was once the owner of the mill which he had then sold to Knowlton. Appellant wanted the lumber product of that mill, and agreed with appellee that, if the lumber from that mill was shipped to it, it would see that the purchase price of the lumber was paid to appellee until the note which was given by Knowlton to pay for the mill was paid. Appellant did not own the mill, but it agreed that the note, representing the purchase price of the mill which was due to appellee, should be given to it. Appellant took the note, and received the shipments of lumber under the express contract that the purchase price for the lumber should be applied to the payment of the note. This was' the contract from appellee’s viewpoint. The lumber product of the mill was ■thus placed in the hands of appellant by appellees to be devoted to the 'payment of the note, the amount of 'which was due to appellee. Appellee perfected the arrangement by which this was done. Appellant got the benefit of it. The facts bring the case within the principle stated in Mason v. Wilson, 37 Am. Rep. 612, as follows: “When, in consideration of a promise to pay the debt of another, the defendant receives property and realizes the proceeds, the promise is not within the mischief provided against, and the plaintiff may recover on the promise or under an action for money had and received.” Smith on Law of Fraud, § 318; Browne on Stat. of Frauds, § 169; also § 187; Farley v. Cleveland, 4 Cowen, 432, and cases reviewed therein; 29 Am. & Eng. Ency. L., (2 ed.) 917. See also Hughes v. Lawson, 31 Ark. 613, Chapline v. Atkinson, 45 Ark. 67, where the principle is not expressly stated, but recognized. The statute of frauds has no place in the case. The judgment is correct. Affirmed.