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Ark.)

LOUIS WERNER SAWMILL CO. V. SESSOMS

185

the county court, determining finally the expeditiously as possible" in its conveyances to amount he had failed to account for and pay another was measured by its own capacity, and

not by the capacity of its grantee. over as treasurer, which also recited he was

[Ed. Note.--For other cases, see Logs and Logshort in his accounts with the county in said ging, Cent. Dig. $$ 6-12; Dec. Dig. Om3.] sum. That judgment, being final, could not 6. LOGS AND LOGGING Cm3-SUFFICIENCY OF be disputed or explained, and it was held er

EVIDENCE TIME FOR REMOVAL FORFEIror to permit its introduction upon the trial TURE. of the criminal charge against the treasurer ber required to remove it as expeditiously as

Evidence, in a suit by the grantee of timfor embezzlement of the county's fund.

possible to reform the deeds so as to give it 15 [7] The evidence is amply sufficient to sup- years absolutely, with a cross-bill asserting a port the verdict, and, no prejudicial error forfeiture of the right of removal and seeking a having occurred in the trial, the judgment cancellation of the deeds as a cloud upon the

title, held to sustain the chancellor's finding that is affirmed.

the complainant had forfeited its right of removal and that the deeds should be canceled.

[Ed. Note.-For other cases, see_Logs and LOUIS WERNER SAWMILL CO. et al. v. Logging, Cent. Dig. $$ 6-12; Dec. Dig. Om3.] SESSOMS et al. (No. 116.)

7. APPEAL AND ERROR 1009-FINDINGS

CONCLUSIVENESS. (Supreme Court of Arkansas. July 12, 1915.)

The chancellor's finding of facts will not 1. LOGS AND LOGGING O3–CONVEYANCE-be disturbed on appeal unless against the clear CONSTRUCTION-TIME FOR REMOVAL.

preponderance of the evidence. Under the provisions of deeds conveying

[Ed. Note. For other cases, see Appeal and timber requiring the grantee to cut and remove Error, Cent. Dig. $$ 3970–3978; Dec. Dig. Om as expeditiously as possible, and providing that

1009.] unless the timber was removed within 15 years the grantee should pay the taxes assessed until

Appeal from Union Chancery Court; J. M. the timber was removed and possession returned, the grantee did not have 15 years absolutely Barker, Chancellor. in which to remove the timber, but was requir- Suit by the Louis Werner Sawmill Comed to remove it as expeditiously as possible.

pany and others against A. B. Sessoms and [Ed. Note. For other cases, see Logs and others, with cross-bills by defendants. DeLogging, Cent. Dig. $$ 6–12; Dec. Dig. Ew3.] cree for cross-complainants, and plaintiffs 2. REFORMATION OF INSTRUMENTS Om 19

appeal. Affirmed. GROUNDS-MISTAKE-IN GENERAL.

To reform a deed and then enforce it calls Gaughan & Sifford, of Camden, and Aylmer for a much greater exercise of the powers of Flenniken and Neill C. Marsh, both of El equity than to set aside a transaction, and to justify a decree for reformation on the ground Dorado, for appellants. H. S. Powell, of of mistake it is necessary that the mistake Camden, for appellees. should have been mutual. [Ed. Note. For other cases, see Reformation

HART, J. On the 20th of February, 1913, of Instruments, Cent. Dig. $8 74–78; Dec. Dig. en 19.]

appellants instituted 17 suits in the chancery

court against certain landowners, in which 3. REFORMATION OF INSTRUMENTS O18 MISTAKE OF LAW.

they sought a reformation of timber deeds Equity does not reform contracts or deeds executed by appellees to the Louis Werner for a pure mistake of law.

Sawmill Company between the 8th and 15th [Ed. Note.-For other cases, see Reformation of July, 1907. The defendants answered and of Instruments, Cent. Dig. $$ 72, 73; Dec. Dig. denied the material allegations of the comOm 18.] 4. REFORMATION OF INSTRUMENTS 32-RE- plaints and filed cross-bills in which they asLIEF—LACHES.

serted that appellants had forfeited their Where plaintiff mill company in 1907 ob- right to cut and remove any of the timber tained option contracts allowing 15 years for involved in the suits and asked that the timthe removal of timber, and, after accepting ber deeds be canceled as a cloud upon their them, prepared deeds containing a provision that it should cut and remove the timber as ex- title. All of the suits were consolidated for peditiously as possible, and that unless removed the purpose of trial, and the court rendered within 15 years it would thereafter pay the judgment against appellants, denying the taxes, and represented to the grantors that it proposed to remove the timber as expeditiously relief sought, and granted appellees the reas possible, and all within 5 years, and then lief prayed for in their cross-complaints. had spur tracks constructed to the timber, and The cases are here on appeal. might have removed it within 5 years, and made no effort to correct the deed on the ground

The record in the cases is long, and to set of mistake in the provision for removal, its suit out in substance the testimony of each wit. to reform the deeds on such ground, not brought ness would extend the limits of this opinion for six years, was barred by laches.

beyond what is practicable. We have read [Ed. Note.For other cases, see Reformation of Instruments, Cent. Dig. $$ 119-121; Dec. carefully and patiently the record in the case Dig. Om 32.]

and have concluded that a statement of the 5. LOGS AND LOGGING Onw3—TIME FOR RE- facts pertinent to the issues raised by the MOVAL-RIGHTS OF SUBSEQUENT GRANTEE appeal may be summarized as follows: "EXPEDITIOUSLY AS POSSIBLE.'

For several years prior to the year 1907, A logging company required by its deeds and since that time, the Louis Werner Sawto remove timber as expeditiously as possible could grant to another company no greater mill Company, a corporation, had a plant at rights than it possessed, and the limitation "as Griffin in the northern part of Union county,

on the St. Louis, Iron Mountain & Southern "The party of the second part shall cut and Railway Company's road, where it manufac- remove said timber as expeditiously as possible, tured lumber. The Edgar Lumber Company, led the same within a period of fifteen years

and it is agreed that unless it shall have remova corporation, had a sawmill plant at Wes- from the date hereof, that it shall be responson, in the southwest part of Union county. sible for and pay to the first party, the full Prior to the year 1907, the Louis Werner amount of taxes assessed against said lands aftSawmill Company had purchased from the from this date until such time as said timber

er the expiration of said period of fifteen years appellees the timber which is the subject is removed and said possession returned to the matter of this action. There is a ridge which said first party.” runs practically east and west through Union The timber deeds were prepared by an county, and near its crest runs the El Dorado agent of the sawmill company and on printand Marysville public road. The timber in ed blanks furnished him by the company question lies in irregular strips and segre- for that purpose. After the Louis Werner gated tracts covering a territory about five Sawmill Company secured these deeds from miles long and, approximately, a mile wide the defendants, it made an exchange of the at its widest point. The timber is south of timber with the Edgar Lumber Company the El Dorado and Marysville road and is and granted to that company the timber in about 15 miles from Griffin, where the mill controversy, with a time limit of 15 years plant of the Louis Werner Sawmill Company within which to remove the timber. Prior to is situated. The sawmill plant of the Edgar the execution of these deeds in 1907, the Lumber Company is about 12 miles south-Louis Werner Sawmill Company had extendeast from the timber in controversy.

ed a spur to the immediate vicinity of the A local railroad was incorporated and ex- timber in question and was cutting the timtended in a westerly and southwesterly di- ber there. This spur was known as the Wilrection from Griffin for the purpose of log- liams spur. Several months thereafter it ging the timber owned by the Louis Werner took up that spur and extended another Sawmill Company. It ran about 342 miles spur from its main line at a point five miles north of the timber in question. The Louis nearer Griffin, which also extended right up Werner Sawmill Company and the Edgar to the timber in question. This spur was Lumber Company both owned timber in the known as the Ballard spur. The Louis same locality. On account of the topography Werner Sawmill Company cut a great deal of the country, it was impracticable and ex- of the timber it got from the Edgar Lumber pensive for the Louis Werner Sawmill Com- Company and hauled it over this spur. pany to get its timber on the south side of the Prior to June, 1907, the Louis Werner Saw. El Dorado and Marysville public road; and mill Company had a mill with an average it was equally impracticable and expensive capacity of 40,000 feet. At that time it shut for the Edgar Lumber Company to get its down its mill to overhaul its plant and intimber on the north side of said public road. creased its daily capacity to 60,000 feet. It Therefore they entered into negotiations for has run at full capacity since that time. The the purpose of exchanging timber so that Edgar Lumber Company in 1907 operated a each company would have its timber more double-band sawmill with a daily capacity nearly in a body. The Edgar Lumber Com- of 100,000 feet. It has operated regularly pany was unwilling to make the exchange and to its full capacity since that time. At unless the Louis Werner Sawmill Company the time the two companies made the exwould execute a deed to it giving it 15 years change of timber, the Edgar Lumber Comwithin which to remove the timber. That pany was operating in Columbia county, Ark., company had deeds from the appellees to the about 15 miles from the timber in controtimber in question, but did not have that versy. After the exchange of the timber, the length of time within which to remove the Edgar Lumber Company moved its logging timber. They sent an agent to appellees and operations back to Union county and workto other persons to ascertain whether they ed from its mill out in the direction of the could secure new deeds with a time limit of timber in question. It had its main line of 15 years.

They first made contracts with logging road within 6 miles of this timber, the appellees reciting a consideration of $5 average distance, and a spur within a mile cash and a certain other designated sum in of one of the tracts, when, in the early part case the option to purchase should be con- of 1912, it moved its logging operations to summated. These contracts gave the Louis Claiborne parish, La. It did this because Werner Sawmill Company the right of re- it had a large amount of timber there on moval of the timber for a period of 15 years which the time for removal was about to exfrom June, 1907. Pursuant to these con- pire. It was imperative that it cut that tracts, the additional consideration was paid timber at once or lose it. As soon as the and timber deeds were executed by the de- timber in Louisiana was cut, it returned to fendants to the Louis Werner Sawmill Com- Union county, Ark., prepared to cut timber pany. The deed granted to the sawmill com- in that county, including the timber in quespany timber of certain dimensions named tion. It learned that appellees claimed that therein, and, in regard to the time of the it had forfeited its right to the timber in removal of the timber, contained the follow- question, and, in order that its logging operaArk.)

LOUIS WERNER SAWMILL CO. V. SESSOMS

187

the outcome of the present suit, an agreement | The new deeds, instead of containing the was entered into between the parties as to clause giving appellants 15 years absolutely the value of the timber to be cut by the Ed-within which to remove the timber, contained gar Lumber Company.

a clause now commonly known as "the exOther facts will be referred to later in peditious clause,” which has been set out the discussion of the issues raised by the above. These deeds were prepared by an appeal.

agent of the Louis Werner Sawmill Company [1] In the case of Earl v. Harris, 99 Ark. and on printed blanks furnished by that com112, 137 S. W. 806, the contract for the sale pany. of timber stipulated that the vendee should The company, however, contends that it cut and remove said timber as expeditious- did not intend to insert the so-called expedily as possible, and that unless he should have tious clause in the deeds under consideraremoved all of the timber within five years tion, and that the clause was inserted by its he should pay the taxes thereafter assessed agent by mistake; that the mistake was muagainst the land until the timber should be tual; that the deeds as executed failed to removed. In construing that contract, the effectuate the intention of the parties; that court held that it was not contemplated that both parties made an honest mistake of law the vendee should have five years absolutely as to the effect of the contract; that the in which to cut and remove the timber, but construction placed upon the deeds by law that he should remove the timber as ex- produced results different from those the peditiously as possible, and that if it re- parties intended; that in such cases courts quired more than five years to do so he will interfere to prevent the enforcement should pay the taxes thereafter assessed of the contract and to relieve parties against the land. To the same effect, see

To the same effect, see from the unexpected consequences of it; and Yelvington v. Short, 111 Ark. 253, 163 S. W. that to refuse relief would be to permit one 522; Newton v. Warren Vehicle Stock Co., party to take an unconscionable advantage 173 S. W. 819; and Burbridge v. Arkansas of another and to derive a benefit from the Lumber Co., 178 S. W. 304. The clause in the contract which neither of them intended. deeds in question providing for a time limit In support of their contention, they cite for the removal of the timber is in all es- State v. Paup, 13 Ark. 129, 56 Am. Dec. 303; sential respects similar to the clauses con- Knight v. Glasscock, 51 Ark, 390, 11 S. W. strued in the cases just cited, and the con- 580; and the case note to 28 L. R. A. (N. S.) struction placed upon those clauses controls 785. On the other hand, it is contended by here. This is conceded by counsel for ap- counsel for appellees that the deed executed pellants, but the object of their suit is to by the parties was the final embodiment in reform the timber deeds executed to them by writing of their agreement, and that the appellees.

clause in question was not inserted by mutu[2, 3] To reform a contract or deed, and al mistake. They insist that the deed should then enforce it in its new form, calls for a be construed in accordance with the rule much greater exercise of the powers of equi- laid down in the cases above cited construing ty than to set aside a transaction. There similar clauses in timber deeds. fore, to justify a decree for reformation on [4] We do not deem it necessary to decide the ground of mistake, it is necessary that this question, for, if the contention of counthe mistake should have been mutual, and sel for appellants be assumed to be correct, it is equally well settled that as a general we think they are barred of relief under rule equity does not reform contracts or the facts in this record by laches. The docdeeds for a pure mistake of law.

trine of laches is applicable to suits of this sel for appellants insist that, under the kind. Pomeroy's Equity Jurisprudence, vol. facts as they appear in the record before us, 6, 8 680; 24 Amer. & Eng. Enc. of Law, 656. the alleged mistake sought to be corrected The jurisdiction to relief in cases like this is in a measure a mistake of fact.

is purely equitable and must be exercised It will be remembered that, when the Louis upon equitable principles. It is true that in Werner Sawmill Company entered into nego- the so-called extension contract an absolute tiations with the Edgar Lumber Company for time limit of 15 years was given. But all the exchange of timber, the latter company of appellees were witnesses in the case and required the former to execute to it a deed testified that the agent of the Louis Werner giving it 15 years within which to remove Sawmill Company represented to them that, the timber. The Werner Company already though a limit of 15 years was placed in the had deeds to the timber, but not for that contract, the company purposed to remove length of time. It then went among the de- the timber as expeditiously as possible, and fendants with an option contract providing that most of it would be removed in 2 or 3 for 15 years from June, 1907, within which years, and that all of it would be removed in to remove the timber. Five dollars was paid 5 years. The agent pointed to the fact that to obtain this extension contract, as they the main line of the logging road of the term it, and, when it was ascertained that Louis Werner Sawmill Company had already they could procure such extensions from all been constructed practically to the timber in of appellees, new deeds, which became the question, and that one spur had already been it was well known by all parties interested , easily removed the timber within five years that the land could not be cultivated until the from the time the deeds were executed. Evitimber should be removed; and that the dence was adduced tending to show that, owlandowners were greatly concerned as to ing to the topography of the country, it would the time in which the timber could be re- be very expensive to log a part of the timber; moved.

but it will be noted that the topography of The timber deeds were secured from ap- the country would not be changed by time. pellees in the early part of July, 1907. Ap- | Moreover, it is not shown but that the ridges pellant Louis Werner Sawmill Company ex- referred to could not be cut down at a reachanged the timber secured from appellees sonable cost. to the Edgar Lumber Company for timber Soon after the Edgar Lumber Company owned by it soon after this time. It then secured the timber in question, it extended took up its spur, and no effort was made by its logging road to within a few miles of the it to correct the deed until just about the timber, but in 1912 it tore up its road and time the present suits were instituted. It proceeded to construct one from its mill to suffered six years or more to elapse before its timber in the state of Louisiana. anything was said or done by it in regard to It is obvious that the time limit within the alleged mistake. During all this time the which to remove the timber must be tested deeds were in the custody of the lumber com- by the language used in the deeds of appellees pany, and it had agents whose duty it was to the Louis Werner Sawmill Company. to examine the deeds and see that they The deed provided that the sawmill company were in proper form. The agents of the saw- should cut and remove the timber as expedimill company knew that the so-called expedi- tiously as possible. The sawmill company tious clause was written in the deeds, and no had the right to convey the timber thus purobjection was ever raised thereto until after chased by it to the Edgar Lumber Company, a similar clause had been construed by this but the latter company, in regard to its right court in the case of Earl v. Harris, supra. to remove the timber, must be governed by Therefore we are of the opinion that it the limit in the deed to the Louis Werner would be inequitable now to grant appellants Sawmill Company, and not by the time limit the relief prayed for by them.

in the deed from that company to it. [5-7] This brings us to the question of Then, too, in determining what would be whether the time granted in the deeds for an expeditious removal of the timber, we cutting the timber had expired at the time must be governed by the facilities of the of filing the present suit. It will be remem- Werner Company. To hold otherwise might bered that the timber deeds in question were have the effect of extending the time limit executed in July, 1907; and that soon after- far beyond what was contemplated by the wards the Louis Werner Sawmill Company parties. To illustrate: If the Louis Werner granted to the Edgar Lumber Company the Sawmill Company should sell the timber to timber in question. It is true the Werner a small concern, the latter might work ever Company by its deed gave the Edgar Lumber so expeditiously and not be able to remove Company 15 years within which to cut and the timber within a period of more than 30 remove the timber, but the Werner Company years; on the other hand, it might sell to a could grant to the Edgar Company no greater company with a much greater capacity than rights than it possessed. Hearin v. Union its own, and that company might be able to Sawmill Co., 105 Ark. 455, 151 S. W. 1007. remove the timber within a very much short

Appellees granted the timber to the Werner er space of time if it proceeded to remove it Company with a proviso that the timber as expeditiously as possible. In cases like should be removed as expeditiously as pos- this, the words “as expeditiously as possible” sible. This clause of the contract had ref- would not refer to the facilities and capacierence to the means and ability of the Louis ties of subsequent grantees, but would refer Werner Sawmill Company to remove the to the facilities and capacities of the original timber, and not to that of any subsequent grantee. grantee of that company. Appellees, when Tested by this rule, the question is: Within they made the deeds to the Werner Com- what time should the Louis Werner Sawmill pany, knew its capacity, knew that it had a Company have removed the timber so that main line of logging road within six miles it might be said to have removed it as expeof the timber, and that a spur had already ditiously as possible? It will be remembered been built to the immediate vicinity of the that this company had a logging road paraltimber. After the Louis Werner Sawmill lel with the timber in question and within Company exchanged the timber with the an average distance of six miles of it. It Edgar Lumber Company for timber owned extended at different times two spurs to the by it, it tore up the spur which had been con- immediate vicinity of the timber. According structed by it in the vicinity of the timber to the testimony of appellees, the company and constructed another spur which extend could have removed the timber in any event ed nearly to the timber, in order to cut other within five years, and probably within half timber owned by it.

that time. The agent of the Louis Werner It appears from the evidence that the Sawmill Company represented that it could Ark.)

ST. LOUIS, I, M. & S. R. Co. v. LASER GRAIN CO.

189

tled rule of this court that the finding of of fruits, the question of its negligence, held, fact made by a chancellor will not be dis- under the evidence, for the jury. turbed on appeal unless against the clear

[Ed. Note. For other cases, see Carriers, preponderance of the evidence, and, from Cent. Dig. $$ 478, 596-598; Dec. Dig. 136.j a careful consideration of the evidence per-| 7. CARRIERS Om39 – CARRIAGE OF Goods —

DUTY OF. taining to this branch of the case, we are not While a common carrier should furnish able to say that the finding of the chancellor reasonable facilities to all shippers at each stais against the weight of the evidence.

tion, he is not required to prepare in advance It follows that the decree will be affirmed. be excused for delay in transporting goods in

for an unprecedented rush of business, and will such case until the emergency can be removed.

[Ed. Note. For other cases, see Carriers,

Cent. Dig. § 98; Dec. Dig. Om39.] ST. LOUIS, I. M. & S. R. CO. V. LASER 8. APPEAL AND ERROR C 667-REVIEW-ABGRAIN CO. (No. 119.)

STRACT.

Where appellee's own counsel found it im(Supreme Court of Arkansas. July 12, 1915.) practicable to point out the deficiencies in the 1. CARRIERS 159 CARRIAGE OF GOODS

abstract, the court will not go into the matter. BILLS OF LADING.

[Ed. Note. For other cases, see Appeal and A provision in a bill of lading requiring Error, Cent. Dig. $2862, 2863; Dec. Dig. Omo the shipper to make claims in writing within a 667.] specified time as a condition precedent to recovering for injuries to the property transport

Appeal from Circuit Court, Johnson Couned is valid.

ty; Hugh Basham, Judge. [Ed. Note.-For other cases, see Carriers, Action by the Laser Grain Company Cent. Dig. $$ 668–671, 699-70342, 711-714, against the St. Louis, Iron Mountain & South718, 71812 ; Dec. Dig. Om 159.)

ern Railway Company. Judgment for plain2. CARRIERS Om 163 -- CARRIAGE OF GOODS

tiff, and defendant appeals. Modified and ACTIONS-BURDEN OF PROOF. In an action for damages to shipments of

affirmed. peaches, where the carrier set up the shipper's

This suit was brought by the Laser Grain noncompliance with the requirement of the bill of lading that complaint be made in specified Company to recover damages alleged to have time, the shipper has the burden of proving com- arisen from the negligence of the railway pliance.

company in the shipment of 27 car loads of [Ed. Note.-For other cases, see Carriers, peaches from designated points in this state Cent. Dig. $$ 722–725; Dec. Dig. Om 163.]

to various points in other states. Some of 8. CARRIERS 159—CARRIAGE OF Goods—the peaches were loaded in cars used for DEFENSES—WAIVER. Where a shipper notified the carrier's gen

shipment of meat; the railway company fureral freight agent of damages to the goods, and nishing them for the use. It was alleged negotiations were had between the parties with that the peaches were damaged, occasioning out the carrier objecting that the shipper had the loss on account of unreasonable delay in lost its right because the claims were not made, as required by bill of lading, to the agents either transportation, failure to furnish proper cars, at the point of embarkation or destination, the and failure to properly ice the shipments in carrier waived its right to object to the manner transit. Each of the 27 counts of the comof presentation.

plaint specified the damage of the shipment [Ed. Note.-For other cases, see Carriers, of a particular car, designating the different Cent. Dig. 88 668-671, 699–70372, 711-714, 718, 71842; Dec. Dig. Om 159.]

amounts claimed therefor. 4. EVIDENCE 323 – OPINION EVIDENCE

The railway company answered, denying MARKET VALUE.

the allegations of the complaint, and pleaded Without producing the market reports, a specially two of the provisions of the contract witness may testify as to market value of fruits of shipment, stipulating that the amount of at a given time, and, though his information be based on such reports, that fact not rendering any loss or damage for which it was liable his testimony hearsay and going only to its “shall be computed on the basis of the value weight.

of the property (being the bona fide invoice [Ed. Note.-For other cases, see Evidence, price, if any, to the consignee, including the Cent. Dig. 88 1214-1217; Dec. Dig. 323.)

freight charges, if prepaid) at the place and 5. CARRIERS Omw133—CARRIAGE OF GOODS-time of shipment under this bill of lading,” DAMAGES.

In an action for injury or destruction of a etc., and that claims for loss, damage, or de shipment of goods, evidence of the market value lay must be made in writing to the carrier at of the property at the place of destination is the point of delivery or at the point of origin admissible; the rule for computation of dam- of the shipment, within four months after deages being the difference between the market price of goods at the time and place when and livery of the property, etc., and, unless so where they should have been delivered and their made, the carriers shall not be liable. value when and in the condition in which they The cases were tried before the court withwere delivered. [Ed. Note. For other cases, see Carriers, count of the complaint in appellee's favor,

out a jury, and judgment rendered upon each Dig; .

except No. 23. 6. CARRIERS Om 136 CARRIAGE OF GOODS ACTIONS-EVIDENCE.

It appears from the testimony that the In an action for damages for carrier's fail- peaches were loaded into the cars in good ure to supply refrigerator cars for the shipment i condition, some of them were delayed in ship

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