Breckenridge v. Hearne Timber Co.

WOOD, J., (after stating the facts). (1) The testimony of Breckenridge and also of Brashears was to tfye effect that they agreed to operate a year under the terms of the contract, and to manufacture all the ties they could within that time. It was understood between appellants and appellee that the contract was to run a year. The above testimony was competent, and the court erred in excluding it. The writing did not specify how long the same was to continue in force. The oral testimony offered made it clear that it was contemplated by the parties that the contract should be in operation for the period of one year. This testimony was within the rule that where a written instrudent does not express the entire agreement or understanding of the parties oral testimony may be admitted to show such agreement or understanding. In such cases the instrument on its face shows that it is not complete, and the admission of oral testimony, therefore, does not tend to vary or contradict the written contract. The contract being silent as to the period of duration, parol evidence was admissible to show it. 2 Elliott on Contracts, sec. 1634; Brincefield v. Allen, 60 S. W. 1010; 17 Cyc. 745; Appeal of Real Estate, Title, Insurance and Trust Co., 125 Penn. St. 549. See, also, Case v. Phoenix Bridge Co., 11 N. Y. Supp. 724; St. L., I. M. & S. Ry. Co. v. Wynne H. C. & C. Co., 81 Ark. 373; 1 Page on Contracts, sec. 27, p. 44. (2) The testimony shows that after the contract was signed the appellants manufactured and delivered to appellee about 20,000 staves, which appellee had accepted. If the contract be treated as one which the statute of frauds requires to be in writing, still under the evidence showing a delivery and acceptance of part of the ties the contract of sale was taken out of the operation of the statute. Walnut Ridge Merc. Co. v. Cohn, 79 Ark. 338. See Izard v. Connecticut Fire Ins. Co., 128 Ark. 434. The testimony of the appellants tended to show that they had purchased from one Richard Jackson, in November, 1912, the timber on a large tract of land agreeing to pay therefor the sum of $3,520 in three equal annual installments and they were to have four years, and in certain event five years, in which to cut and remove the timber. They informed the agent of the appellee with whom the contract was made of such purchase and terms thereof and explained to them that their purpose for wanting this contract with the appellee for a year was to. enable them to meet their payments to Jackson on the timber out of which the ties contemplated by the contract were to be manufactured. That under the contract they were to manufacture all the ties they could for a space of one year. The contract on the part of the appellee, to purchase upon the terms specified, implied a corresponding obligation on the part of the appellants to sell upon those terms. Thomas-Huycke-Martin Co. v. Gray, 94 Ark. 9. (3) “A garnishment proceeding only draws in controversy so much of the garnishee’s indebtedness as is necessary to satisfy the plaintiff’s debt.” Bank of Waldron v. Euper, 93 Ark. 609. (4) In the suit of McDaniel, the plaintiff, against appellant here, McDaniel recovered nothing, therefore no indebtedness between the defendants, appellants here, and the garnishee, appellee here, was in issue in that suit. The defendants in that suit, appellants here, did not challenge the answer of the appellee,' the garnishee, to the interrogatories propounded by the plaintiff McDaniel in that case, and they were not called upon to do so. The receipt endorsed upon the margin of the record of the judgment in that case which was signed by O. M. Brashears, showed that he had received the sujm. of $104.13 from appellee under the judgment rendered in that case. But the judgment in that case, as before stated, was not an adjudication of the matters in issue here between appellants and the appellee and the receipt mentioned contained none of the elements of an accord and satisfaction that would preclude the appellants from prosecuting this suit against the appellees for damages growing out of the alleged breach of contract. For the errors indicated, the judgment is reversed and the cause remanded for new trial.