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ment, and all arrived at destination more or | Ark. 436, 142 S. W. 826; C., R. I. & P. Ry. less damaged, as a result of the unusual de- (o. v. Foster, 176 S. W. 682. Failure to give lay in transit and the failure to properly notice in accordance with this provision of refrigerate. The testimony also tended to the contract of carriage, having been specialshow the amount of such damage. Laser ly pleaded and relied upon as a defense, cast stated that the peaches in the different cars the burden of proof upon the shipper to show had been sold f. o. b. the point of shipment either a compliance with it or a waiver of at a certain price per bushel or crate, except the requirement by the carrier in order to a certain cars designated by him to be sold on recovery. St. L. & S. F. R. Co. v. Keller, commission, the amount that was realized 90 Ark, 313, 119 S. W. 254; St. L. & S. F. on the sale of the shipment at the point of R. Co. v. Pearce, 82 Ark, 357, 101 S. W. 760, destination, the amount of the freight, icing, 118 Am. St. Rep. 75, 12 Ann. Cas. 125; Cumand other charges claimed as damages. bie v. St. L., I. M. & S. R. Co., 105 Ark. 406 There was other testimony relative to some and 415, 151 S. W. 240. Such a stipulation of these amounts. He was allowed to state, has been held to be one for the protection of. over appellant's objection, that he knew the the carrier, compliance with which can be market price of the peaches in Boston, the waived by it. 6 Cyc. 509; St. L. S. W. Ry. destination to which three of the shipments Co. v. Grayson, 89 Ark. 154, 115 S. W. 933; were consigned, on the date of the sale there, St. L., I. M. & S. R. Co. v. Shepard, 168 S. from having read the market quotations and W. 137. price lists, although he had no such lists from [3] It is true that no claim in writing was which to testify.

made to the carrier either at the point of The court refused to declare the law to be origin or delivery of shipment within the that the burden of proof was upon plaintiff to time specified. But it is also true that a show that a written notice of claim for dam- written claim for damages upon each of the ages was given within four months to the shipments made, except three cars, was preagent of the defendant at the point of origin sented to the general freight agent of the of shipment, and also that such a provision railway company in St. Louis by appellee requiring written notice of the claim for company, whose manager talked with the damages was valid, and, unless given, would agent upon the adjustment and settlement of defeat a recovery.

the claim for damages upon each of said cars, The court also refused to find, as a fact, and also with the agent, Mr. Wyler, of the that the railroad had exercised all necessary American Refrigerator Transit Company, to diligence in supplying refrigerator cars for whom he was referred by appellant's agent the shipment of peaches from the state in relative thereto. This witness

This witness stated the the year 1912; that on account of the un- claims for each of the said cars, except three, usual demand for such cars during the peach

were made out in writing and mailed to Mr. shipping season it was forced to substitute Walton, the general freight claim agent of what it called "meat cars," as they were the the railway company at St. Louis, and that only ones available, to supply the demand; the receipt of claims had been acknowledged and that the damage to the peaches shipped by said agent upon postal cards, introduced therein were caused from the bunkers not in evidence by the witness, and he also statbeing sufficiently large to hold enough ice to ed that he had personally discussed with and keep them properly refrigerated. The court found in favor of plaintiff on 26 negotiated for the settlement of each of the

claims with said general freight claim agent of the 27 counts of the complaint for dam- in St. Louis, having all of them in writing ages to that number of cars of peaches, desig- with him and presenting them for the purpose nating the amount on each count, and ren- of settlement; that neither of the agents at dered judgment accordingly, from which this

any time objected to the investigation or setappeal is prosecuted.

tlement of any of the claims because they Thos. B. Pryor, of Ft. Smith, for appellant. were not presented in different form or to W. Covington, of Ft. Smith, and Sellers & the agent at the point of shipment or desSellers, of Morrilton, for appellee.

tination.

The freight claim agent of appellant comKIRBY, J. (after stating the facts as pany did not testify, and Mr. Wyler, the above). [1, 2] Appellant's first contention is agent of the American Refrigerator Transit that the court erred in not finding in its Company stated that the claims in writing favor because no claim in writing for dam- for damages upon 21 of the cars shipped had ages was made to the carrier within four been presented to him by the direction of months after the delivery of the shipment, appellant company for investigation and adas required by the bills of lading. A stipu- justment. Thus the claims were presented lation of like kind in a bill of lading or con- in writing to the general freight agent of tract of carriage has been held reasonable appellant company, and also by his direction and valid, and the failure of the shipper to to the agent of the American Refrigerator present his claim in writing within the time Transit Company for investigation, and negospecified conclusive of his right to recover. tiations between appellee and such agents

Ark.)

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

191

these claims for damages were pending for petent for him to testify to the market value some time thereafter without any objection of the article in a particular market, as he did, made upon the part of appellant that such without producing the published reports and claims were defective or made out of time, quotations in support of his statement; the and appellant company waived its right to in- fact that his statement was based upon such sist upon compliance with the terms of the knowledge without producing the reports, stipulation relating thereto upon all the cars price lists, and quotations going rather to for which such claims for damages were the credibility of the testimony than to its made within the four months allowed there competency. for.

[5] This testimony related only to dam[4] Second. The court declared the law, ages claimed upon the cars shipped to Bosas requested by appellant, that the amount ton to be sold upon commission there, and, of damage or loss for which it was liable of course, it was competent to prove the should be computed on the basis of the value damages upon all such shipments as had not of the property shipped at the time and place been made upon orders and an agreed inof shipment upon the bona fide invoice price voice price; the rule for computation of damto consignee, including the freight charges, if ages for delay and injury in transportation prepaid, in accordance with the terms of the of goods being the difference between the bill of lading. And the manager of appellee market price of the goods at the time and company stated that his estimate of damages place when and where they should have been was made upon the basis of the invoice price delivered and their value when and in the on the peaches shipped f. o. b. cars at the condition in which they were delivered. St. point of shipment, except the cars sold on L., 1. M. & S. R. Co. v. Tilby, 174 S. W. 1167. consignment. He also testified relative there [6] It is next insisted that the court erred to, and there was other testimony tending to in not finding, as a fact, that the railway show the various other items of expense company was not able to furnish proper cars claimed as damages.

for the shipment of peaches on account of It is next contended that the court erred the unusual and unprecedented demand for in permitting the manager of the appellee refrigerator cars for the crop of 1912. There company to testify to the market price of was testimony tending to show that only 472 peaches in Boston at the time the three cars cars of peaches were shipped from the state in question should have been delivered there in the year 1907, the largest shipment in any from his knowledge based upon market re one year until 1912, during which year there ports and quotations not produced in evi- were shipped 3,194 cars, or an increase of dence. This witness stated that he kept in almost 600 per cent. formed of the market price of peaches in Two witnesses testified that every possible Boston during the time the shipment should effort was made by the American Refrigerator have arrived, from the market quotations Transit Company, which owned 3,700 cars, to and reports published in the newspapers and furnish and provide refrigerator cars for carotherwise, and that such value was as stated rying the peach crop of 1912 to market. by him.

They used all the cars they had and all they In St. L. & S. F. Ry. Co. v. Pearce, 82 Ark. could procure from other companies in fur358, 101 S. W. 760, 118 Am. St. Rep. 75, 12 nishing the carriers of the state cars for Ann. Cas. 125, the court said:

transportation of the peaches. One of these “Standard price lists and market reports, witnesses stated that they began preparations shown to be in general circulation and relied on early in 1912 for estimating the probable by the commercial world and by those engaged in the trade, are admissible as evidence of mar- crop and supplying cars for the transportaket values of articles of trade."

tion of it, and that it was impossible to have The witness here did not produce the pa- refrigerator cars manufactured in time to pers and journals containing the published remove the crop of 1912 after its magnitude market quotations and reports, but he tes- was indicated in the early spring. One wittified that he kept up with the market, that ness testified, however, that there was no he examined and was familiar with the re such shortage of refrigerator cars as preports and knew the market value to be as vented the supply of the requisite number for stated, because of the information derived carrying to market the peach crop of the from such published reports. We do not state of Arkansas, and it was shown that think this testimony was incompetent as be the crops of Texas requiring refrigerator ing hearsay, for the market value is indicated cars for transportation had been moved beby the prices received and paid for articles fore it had been necessary to begin the shipof commerce, by those dealing therein, and a ment of the Arkansas peaches, and that sufwitness who was present and saw the general ficient cars could have been had for the purpublic sales made at the prices offered and pose upon reasonable and proper effort made accepted could testify thereto in establish- to secure them. ing the market value of that article or com [7] Appellant's requested declaration of the modity at the time and place without produc- law was erroneous, even if the testimony had ing the bids and acceptances or having pub- warranted the finding of fact requested. Al

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reasonable facilities of transportation to all No. 9. It will suffice to say that the testishippers at every station who in the regular mony has been carefully read and considered and expected course of business offer their It is sufficient to support the court's findings goods for transportation, it is not required as to the amount of damages for which judgto prepare in advance for an unprecedented ment was rendered under counts Nos. 3, 4, 6, and unexpected rush of business, and there 7, 8, 9, 10, 12, 13, and 17; on counts Nos. 1 fore will be excused for delay in shipping for $371.45; 2, $363.01 ; 14, $270.98; 15, $346.or even in receiving goods for shipment until 34; 18, $190.17; 19, $225.45; and 26, $198.95. such emergency can in the usual and regular The testimony is not sufficient to support a course of business be removed. St. L. S. recovery under counts Nos. 5, 11, 16, and 22. W. Ry. Co. v. Clay County Gin Co., 77 Ark. There was no acknowledgment of receipt of 362, 92 S. W. 531.

a claim for damages upon the cars set out in There is a mass of testimony in the record counts Nos. 20, 21, 24, 25, and 27 within the relating to the claims for damages upon 27 time required, and the testimony does not different cars of peaches shipped, and appel- definitely show that a claim for damages was lant claims to have made a fair and as full made in any manner upon these cars and ne. an abstract as practicable of the testimony gotiations entered into for their settlement berelating to the claim of damages upon each fore the expiration of the four months stipucar.

lated in the bill of lading in which the claim [8] Appellee claims generally that the ab- was required to be made. It is true the stract is not full and complete, but only chal- manager of appellee company or his father lenges it specifically relative to count No. 9 of for him claimed to have talked with the railthe complaint, saying in its brief:

road claim agents relative to the claims for "We take the testimony as to this car at damages on these cars, but the testimony random, it not being practical, as counsel says, does not show that such conversations octo go into analysis of the testimony as applied curred before the expiration of the time, and to each car. * * We not only call atten- the burden of proof to show waiver, being tion to the testimony relating to this particular car as a sample of the testimony with reference upon appellant, was not sustained. to other cars, but also to the manner in which The judgment must therefore be modified, the testimony has been abstracted by counsel and, after deducting the amounts from the for appellant."

trial court's findings under the different Necessarily the court cannot be expected counts of the complaint, as indicated, and to explore the record to ascertain whether the amounts not allowed under the other appellant's abstract of the testimony relating counts, as stated, will be entered here for to the claim of damages for each car under the sum of $4,281.87, with interest as aleach count of the complaint is fair and suffi- lowed by the judgment of the court below, cient when appellee's counsel have not found with the costs of appeal adjudged against it practicable to do so, and do not object to appellee. such abstract specially except as to count It is so ordered.

Ky.)

HOLTZCLAW v. WELLS

193

purchase price of the land and its interest, HOLTZCLAW et al. v. WELLS.

and on the same day the court directed that (Court of Appeals of Kentucky. Oct. 22, 1915.) after the payment of the costs, one-third 1. TRUSTS (ww110_AGREEMENT TO PURCHASE of the purchase money should be paid to

FOR ANOTHER “PAROL CONSTRUCTIVE each of the joint owners of the land. On
TRUST"-SUFFICIENCY OF EVIDENCE.
In an action for the recovery of land, on

the following day, the 9th of March, Overthe ground that defendant agreed to buy it for ton Adams filed an affidavit, signed and plaintiff's ancestor and had fraudulently taken sworn to by himself, in which he recited the title in his own name and refused to convey fact that the land had been sold and the sale evidence held insufficient to establish a "parol constructive trust,” which arises when one ob-confirmed, and the purchase price had been tains the legal title to property in violation of paid to the commissioner of the court, and some express or implied duty to the one who is that the court had directed one-third of the equitably entitled thereto, and holds it in hostil- proceeds of the sale of the land to be paid ity to the other's beneficial rights.

[Ed. Note.-For other cases, see Trusts, Cent. to Charles Singleton, and that he had preDig. $ 160; Dec. Dig. Om 110.]

vious thereto bought Singleton's interest in 2. TRUSTS Om 110

CONSTRUCTIVE the land for the sum of $20, and was enTRUST-WEIGHT OF EVIDENCE.

titled to Singleton's portion of the proceeds To establish a parol constructive trust, the of the sale, and asked that the order of the proof must be such as to leave no racional doubt as to the truth of the necessary facts, and evi- court for distribution of the funds be set dence must be strong and convincing against aside, to the extent that it ordered the paydocuments showing the legal title to be in some ment of one-third of it to Singleton, and in one else.

[Ed. Note.-For other cases, see Trusts, Cent. place thereof that the court order it to be Dig. $ 160; Dec. Dig. Om 116.]

paid to him. On the same day Adams execut

ed an order upon the master commissioner Appeal from Circuit Court, Lincoln County of the court, directing him to pay to M. C.

Suit by B. D. Holtzclaw, administrator, Saufley, who seems to have been his attorand others, against J. T. Wells. Judgmentney, $7.50, out of any fund in the hands of for defendant, dismissing the petition, and the master commissioner coming to Adams, plaintiffs appeal. Affirmed.

which had arisen from a sale of the land, See, also, 153 Ky. 768, 156 S. W. 407. and this order was accepted by the master

R. H. Tomlinson, of Lancaster, for appel- commissioner and the money paid. The court lants. Geo. D. Florence and P. M. McRob- sustained his motion to the extent of setting erts, both of Stanford, for appellee.

aside the order directing the payment of

one-third of the proceeds of the sale to HURT, J. Overton Adams, an unmarried Singleton, and ordered payment of it withman, resided in Lincoln county, Ky., on a held for the further adjudication of the farm of 10242 acres, of which he was the court. Thereafter, on the 30th day of June, owner of an undivided one-third interest. 1905, Adams filed an answer and cross-peA sister resided with him, and previous to tition in the case, in which he set up the same his death, which occurred on the 23d day of facts as in his affidavit, showing his right December, 1905, his sister died. The appel- to Singleton's portion of the proceeds of the lee, J. T. Wells, for several years previous sale of the land, and asked that it be paid to the death of Adams, also resided with

to him. him, but exactly upon what terms is not

Adams died intestate, and thereafter, on shown. In 1904, Ann Gover, who was the the 11th day of May, 1911, his administraowner of an undivided one-third interest in tor and 32 of his collateral heirs instituted the farm upon which Adams lived, institut- this suit against the appellee, Wells. The ed a suit against Adams and Charles Single- allegations of the pleadings in this case are ton, the other joint owner, for a sale of the fully set out in the opinion upon a former land and a division of its proceeds. The appeal of this case, which may be found in court adjudged that Adams, Singleton, and 153 Ky. 768, 156 S. W. 407. Suffice it to say, Gover were each an owner of an undivided however, that the plaintiffs below, who are one-third of the land and adjudged that it | the appellants here, alleged in substance that be sold. The sale was made on the 8th day Overton Adams, their ancestor, was the ownof August, 1904, when the appellee, J. T. er of an undivided two-thirds interest, and Wells, became the purchaser, at the price in addition one-sixth of the land which was of $300, and executed bond for the purchase sold in the action of Gover v. Adams et al., price with J. M. Singleton as his surety. and that he desired to become the purchaser The sale was duly reported, when Ann Gover of it at the decretal sale, but, upon the day filed exceptions to the sale, and thereafter upon which the sale was made, that he was additional exceptions, which the court final- | sick and unable to attend the sale, but, for ly heard and overruled on the 8th day of the purpose of purchasing the land at the March, 1905. On the same day the appel- sale, he made the appellee, Wells, his agent lee gave his check to the master commis- to attend the sale and buy the land for him, sioner, on a banking institution at Crab Or- and also procured a surety in the bond which chard, for the amount of $310, which was the would have to be executed for the sale price,

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

and that Wells fraudulently purchased the call him "My Boy"; that, two or three days land for himself, and caused himself to be previous to the decretal sale, Adams, acreported as the purchaser, and procured a companied by Wells, went to a neighbor, to confirmation of the sale and execution to whom Adams said that the land was to be him of a deed, all of which facts were un- sold in order to get Ann Gover's interest out known to Adams, who was relying upon of it, and that he was unwell and could not Wells to take care of his interest in the mat- go to the sale, and he wanted the neighbor ter, as directed, and who did not learn until to go and assist Wells in buying in the land. after the sale was confirmed, the real truth The neighbor inquired how much he should as to the actions of Wells, and that he had pay for it. Adams answered that Tommy offered to pay to Wells the amount that he (meaning Wells) would attend to that, and had paid upon the bond for the purchase that he just wanted the neighbor to go on price of the land, which Adams was then the bond for the purchase money, which the able to do, and demanded of Wells that he neighbor promised to do and did go and atconvey the land to him, but that Wells had tend the sale, where Wells was the only fraudulently refused to do so, and had con- bidder, at the sum of $300, and the land tinued to hold the land and its title in fraud was sold to him, and that the witness beof the rights of Adams until his death, and came Wells' surety upon the bond. It was since that time in fraud of the rights of the proven by another witness that on the day appellantswho were his legal heirs and of the sale, but after it had taken place, that succeeded to their ancestor's rights per- Wells jokingly said that he had bought the taining to the land, and prayed that the land, and that he was going home and tell court adjudge that the transactions amount Adams that he had bought it for himself. ed to a constructive trust, and that Wells By another witness it was proven that, some was holding the land as trustee for appel- time after the sale, Adams requested him lants, and that he be required to convey the to see Wells, and see if any arrangements land to them.

could be made about the land. Wells and The appellee, by answer and amended an- the witness went to Adams, and Adams and swers, controverted all the allegations of the Wells agreed that they would survey off a petition, and in addition pleaded that his pur- part of the land, and that Adams could live chase of the land and his procuring a deed, there and keep his property there, as long and the payment of the purchase money by as he lived, but at his death that portion of him were facts well known to the decedent the land should revert to Wells. Another at all times, and that decedent approved of witness testified that, about the middle of same and filed no exceptions to the report of the summer of 1905, he went with Adams to sale, and also set out the fact of the dece. Lancaster, to which place Adams went for dent filing the affidavit and motion on the the purpose of consulting a lawyer about 9th day of March, after the confirmation bringing a suit for the land. of the sale and the payment of the purchase For the appellee it was proven that he re money, and the filing of his answer and sided in the same house with Adams at the cross-petition on the 30th day of June, there- time of the sale and continued to live in the after, and relied upon same as an estoppel same house until April or May, 1905, when to the plaintiffs' cause of action set up in he married, and thereafter lived in another their petition, and further pleaded that since house upon the same land; that shortly aftthe death of the decedent the appellants er the sale Wells went to work upon the had, by an order of court, procured the pay- land, clearing it up of its brush, erecting ment to their attorney, as a portion of his new fencing, cutting down trees, which he fee in the case, the sum of $100, which he al- caused to be sawed into lumber, and which leged was a part of the proceeds of the sale he brought to the land and used in improveof the land which belonged to the decedent, ments upon it. By another witness it was and relied upon such fact as a further es- proven that in January, 1905, she went to toppel to the appellants' cause of action. Adams for the purpose of renting a house

The affirmative allegations in the answer which was on the land; that Adams said to and amended answers were duly controvert- her that he had given the land to Wells, and ed by replies, and the cause coming on to be that she would have to see him. She did heard upon the pleadings and proof, the so, and rented the house from Wells, and court adjudged that the petition of the ap- the rent was paid to Wells by work on the pellants be dismissed, to which they except- farm. Another witness stated that in March ed, and prayed an appeal to this court. or April, 1905, he accompanied Adams to

Proof was offered by the appellants tend-Stanford, and while there that Adams said ing to prove that the land was worth from that he had gone to the clerk's office to see $700 to $1,000; that Adams was a man of about a deed between him and Wells, and good sense, able to read and write, and was that he had found it, and that it was all near 70 years of age; that Wells had lived right. By four different witnesses it was in the same house with him for several proven that he said to one of them, in Febyears previous to the sale, and that Adams ruary, 1905, that Wells was to have everyseemed to have a great affection for him, thing that he had, and that he did not want

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