Rice-Brown Lumber Co. v. Fleetwood

SMITH, J. Appellee recovered judgment for damages from the appellant lumber company for the breach of a contract for manufacturing lumber. It appears that appellee liad a contract under which he was operating and that he was making a profit out of it, but the testimony is in irreconcilable conflict as to the party with whom he had contracted. The lumber company owned a large body of timber, a considerable portion of which had been blown down in a storm, and appellee testified that the president of the company solicited him to contract to manufacture this timber, but he refused to do so on the ground that there was not a sufficient quantity* of it to justify the expenditure of the money which would be required to put appellant’s mill in condition to saw the timber, whereupon they entered into a contract for sawing the down timber as well as certain standing timber, and after appellee had expended $294.25 in putting the mill in condition, together with certain other expenses, the possession of the mill was taken away from him and he was not allowed to proceed under his contract. Appellant contends that it never contracted with appellee for the manufacture of its timber, but that it had a contract for that purpose with one Clay, who, in turn, had contracted with appellee. It is impossible to reconcile the testimony on this subject, but appellee testified that his contract was with the appellant company, and not with Clay, and three witnesses corroborated him in this statement, and this testimony is legally sufficient to support that finding, and we do not, therefore, consider appellant’s contention that this testimony is improbable and unreasonable and that the jury’s finding is against the preponderance of the testimony. (1) It appears that the parties to this litigation had had other litigation in which appellee had testified, and appellant asked for permission to read portions of the testimony of appellee in that trial for the purpose of contradicting him. It is said that this testimony had been taken by the official court reporter in shorthand and after-wards transcribed by him. But no witness at the trial from which this appeal has been prosecuted testified that the offered testimony was in fact the testimony of appellee at the former trial, and the court did not, therefore, err in excluding it. It is true there was a certificate which was signed by the reporter to the effect that the offered testimony was the testimony of appellee, but the reporter was not called and sworn and no other evidence was offered in identification of the rejected testimony. There is nothing in the law giving verity to the certificate of an official stenographer or making admissible testimony which rests upon his, certificate that it is what it purports to be. (2) Appellant saved its exception to instruction numbered 4, which reads as follows: “No. 4. You are instructed that even though you may find that W. A. Clay, at the time plaintiff contracted to saw or cut defendant’s timber into lumber, was under contract with the defendant to operate its sawmill and to pay for all the expenses of operating its sawmill and manufacturing its lumber, the plaintiff would not be bound by the said contract between said W. A. Clay and the defendant, unless such cóntract was brought to his attention; and if defendant’s authorized officers or agents, acting in conjunction with said W. A. Clay, entered into a contract with the plaintiff to saw its timber into lumber and at the time of making such contract with plaintiff such authorized officers or agents led the plaintiff by their words or conduct to believe that he was contracting with the defendant the defendant would be estopped to set up a contract it had previously made with said W. A. Clay as a defense to this action, unless defendant or W. A. Clay or some other person brought to the attention of the plaintiff the terms of such contract so previously made. ’ ’ The objection made to this instruction is that in effect it tells the jury that it was the duty of appellant to make known to appellee the provisions of the contract ■existing between it and Clay, and that if it failed to do so and appellee believed he was contracting with appellant, then a contract existed between the parties. We think, however, that the instruction was a proper one, for if the testimony of appellee is true and he had the contract which he says he has, his rights thereunder would not be defeated by any inconsistent contract which appellant may have had with Clay, unless appellee was advised of Clay’s conflicting rights when his own contract was made. This is the purport of the instruction set out and appellant could not have asked a more favorable ■declaration of the law on that subject. Objections are urged to 'Other instructions given at the request of appellee; but these objections leave out of account the appellee’s contention in regard to his contract, and however much against the preponderance of the evidence this contention may now appear to he, we can not say that the jury should have disregarded it, and it was, therefore, proper for the court to submit under appropriate instructions appellee’s theory of the'case. 'Complaint is also made of the refusal of the court to give certain instructions requested by appellant; but as all instructions are not abstracted we can not say that the instructions refused were not covered by others which were given. Judgment affirmed.