Bell Lumber Co. v. Alewine

Hart, J., (after stating the facts). It is first insisted that the evidence is not sufficient to support the verdict. The contention in this respect is that the minds of the parties did not meet as to the price to be paid for the lumber. We cannot agree with counsel in this contention. According to the testimony of both the plaintiff and the defendants, there was a meeting of the minds of the parties as to the price to be paid for the lumber; but their testimony is in direct conflict as to what price the parties agreed upon. On the one hand, the plaintiff testified that the defendants agreed to pay him $30 per thousand feet for mill-run lumber. On the other, the defendants testified that they agreed to pay him $30 per thousand feet for common boxing, $35 per thousand feet for clear boxing, and $25 per thousand feet for what they called dimension lumber. So it will be seen that the testimony on each side tends to show that a contract was made between the parties for the purchase of the lumber of the plaintiff, to be delivered at the yard of the defendants in Atkins, Arkansas; but their testimony is flatly contradictory as to the price to be paid for it. There is no dispute between the parties as to the grade and quantity of the lumber delivered. The dispute as to the price to be paid' was settled by the jury in favor of the plaintiff, and the verdict is binding upon this court upon appeal. In this connection it may be stated that the court submitted the question of the price to be paid for the lumber to the jury in an appropriate instruction, to which no objection was made. It is insisted', however, bj^ counsel for the defendants that the court erred in refusing instruction No. 1 asked by the defendant. The court properly refused to give the instruction in the form asked by the defendant. The concluding part of the instruction reads as follows: “And you are further instructed that, if you find from the testimony that the defendant, Bell Lumber Company, acting under the directions of the plaintiff, delivered to the various drivers a ticket, showing quantity and quality of each load, and giving prices given for the various grades of lumber, and these tickets were delivered to Taylor under the plaintiff’s directions, then you are instructed that the delivery to Taylor of these tickets was the same as if the tickets for the lumber had been delivered to the plaintiff, and the plaintiff is bound by the information in these tickets.’’ It will be noted that the instruction is peremptory in its nature. It tells the jury, as a matter of law, that, if the tickets given by the Bell Lumber Company to the haulers, showing the quantity, grade and price of each load of lumber, were delivered to Taylor, then the delivery of the tickets to Taylor was the same as if they had been delivered to the plaintiff, and that the plaintiff is bound by the information contained in the tickets. This was error. The question of whether these tickets became an account stated, under all the evidence, was one for the jury, under proper instructions from the court. It was error to tell the jury, as a matter of law, that the plaintiff was bound by the information given by the tickets because he had consented to their delivery to Taylor. The rule is that a stated account is not binding as such unless both parties, either expressly or impliedly, assent to it as being correct. Wimberley Grocer Co. v. Brandon-Craig & Co., 160 Ark. 527. In an account stated it is necessary that the statement of the account should be submitted to the party sought to be bound or to his duly authorized agent. Charlesworth v. Whitlow, 74 Ark. 277. The jury might have found, from all the facts and circumstances introduced in evidence, that Taylor had authority from the plaintiff to receive -the accounts and act for him, expressly or impliedly, in assenting to the correctness thereof. But, under the circumstances, it would have been error to have told the jury, as a matter of law, that the plaintiff was bound by the knowledge received by Taylor as to the price allowed him by the defendants for the lumber. The jury might have inferred, from all the attending circumstances, that the slips of paper showing the grade, quantity and price of lumber were given to- him to be used in the final settlement of all the parties with the plaintiff, and that the plaintiff might not examine them until after all the logs from the timber in question had been sawed into lumber and delivered to the defendants at their mill. Hence the jury might have found that it was not contemplated between the parties that the plaintiff should examine these slips until final settlement should be made of the whole matter. In this view of the case it would have been erroneous to have told the jury that be was bonnd by the information which Taylor received npon the delivery of the slips to him It follows that the judgment must be affirmed.