THE SOUTHWESTERN REPORTER VOLUME 232 (149 Ark. 318) AUGUSTA COOPERAGE CO. v. DOWDY et al. (No. 61.) (Supreme Court of Arkansas. June 20, 1921. 1. Sales 53 (2)-Existence of contract to In seller's action for buyer's breach of contract to purchase all the ash and gum logs to be cut and delivered during the logging season from sellers' lands with three teams and two saws not to exceed a million feet, in which de- 433(1)-Authority of cooperage company's representative to contract for output of logs held for jury. Whether representative of cooperage company had apparent authority to make contract to purchase output of logs held for the jury. 3. Frauds, statute of 90 (4)-Oral contract of sale of logs held not void, where buyer's representative scaled and took up three batches. Oral contract to purchase output of logs to be cut and delivered during logging season held not void under the statute of frauds, requiring a contract for the sale of goods valued at more than $30 to be in writing, where buyer's representative had scaled and taken up three batches of logs, as well as binders and floats with which to raft them. oral contract whereby appellees agreed and contracted to sell to appellant all the ash and gum appellees could cut and deliver during the season with three teams and two saws from appellee's lands in Black river bottom. Appellant interposed the defenses to the cause of action that: (1) It did not enter into the alleged contract; (2) its agent was not authorized to make the alleged contract; and (3) if such contract was made, it was contrary to the statute of frauds and void, because the value of the logs was more than $30, and the contract was not in writing, signed by the parties. Relative to the contract, appellees introduced the following witnesses: Arthur Wilson, Albert Wilson, R. A. Dowdy, Cecil Sexton, and G. A. Patterson. Arthur Wilson testified that, as the representative of appellees, he entered into an oral contract with Pete Thoma, as representative of appellant, on or about the 26th day of August, 1920, to sell appellant all logs, during the logging season of 60 to 90 days, that he could cut and deliver with two saws and three teams, off of appellees' lands in Black river bottom; that the price agreed upon was $22.50 a thousand for soft woods, and $35 for ash; that Thoma scaled and took up three lots of logs under the contract, and, after the fourth lot of about 66,671 feet was piled on the bank, the place agreed upon for delivery, Thoma refused to scale and take them up; that he said he would write the company; that later he stopped on his way Appeal from Circuit Court, Woodruff Coun-up the river and said: ty; J. M. Jackson, Judge. Suit by J. A. and R. A. Dowdy against the Augusta Cooperage Company. Judgment for plaintiffs, and defendant appeals. Affirmed. J. F. Summers, of Augusta, and Geo. B. Webster, of St. Louis, Mo., for appellant. H. M. Woods, of Augusta, and Chas. F. Cole, of Batesville, for appellees. HUMPHREYS, J. Appellees instituted this suit against appellant in the Woodruff circuit court, Northern District, to recover $1,568.40 for 6,000 feet of ash and 60,000 feet of gum logs alleged to have been delivered on the river at Lockhart ferry, pursuant to an "Do you want your logs scaled?' and I said, 'Yes.' I asked him if he would allow another scale, and he said 'Yes.'" The company's raftsman rolled 4,000 feet of this lot of logs in the river, and they were taken up. The others were left on the river bank. Albert Wilson testified that he heard a conversation between Arthur Wilson and Pete Thoma relative to the purchase of the Dowdy timber; that after Thoma bought his timber he introduced the parties; that Thoma told Wilson he would take all the logs he could put out, up to a million feet, and pay $22 a thousand for soft woods and $35 for For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ash; that Wilson said he would run two | had not received instructions from appellant saws and three teams; that he received appellant's check for the logs he sold it; that Thoma bought a great many logs up and down the river for appellant. company to quit buying logs; that he received notice after that time, and refused to scale and take up the logs on the bank as he came back; that he only bought binders R. A. Dowdy testified that appellees em- and floats which were necessary to raft the ployed Arthur Wilson as their foreman to logs which he bought he bought outright on the put out their timber in Black river bottom; | banks of the river as he passed along; that that he was informed by Wilson that Thoma he bought no logs for future delivery. had offered to take all Wilson could put out with his force during the season for $22.50 a thousand; that he told Wilson to let Thoma have all the logs; that the first scales contained a small amount of ash, and he accepted checks in full payment of the statement, in which a small amount of ash was figured in at $27.50 and $22.50 a thousand; that he had not conferred at the time with Wilson, and did not know that the agreed price for ash was $35 a thousand; that, after Thoma refused to take up the logs, he saw E. J. Chalfant, the manager of appellant company, and Mr. Chalfant said, "If Thoma agreed to take your logs, he will do so"; that afterwards he saw Thoma in the presence of Wilson, and Thoma did not deny the contract, but said appellant instructed him not to take up any more logs on the bank of the river; that Thoma raised the question about appellees having sold logs to others; that they never let anybody else have logs after Thoma began taking them. Cecil Sexton testified that he heard Pete Thoma tell Arthur Wilson to get out all the logs he could, stating how many of them he would take at the same price; that, after the logs in controversy were on the bank, he heard Thoma tell Wilson as he came back down the river he would take up the logs. G. A. Patterson testified that when Thoma was scaling and taking up logs he heard him tell Wilson to go ahead and get out all the logs he could; that he would take them; that part of the last batch put on the bank by Wilson was rolled in the river and put in appellant's raft. Several of the witnesses testified that Thoma selected binders and floats for rafting the logs on appellees' land, and had them cut and hauled to the river bank for that purpose. M. F. Collins testified that, on September 22, 1920, he was at the Lockhart ferry and heard a conversation between Thoma and Wilson; that Thoma asked Wilson if he wanted his logs scaled, and Wilson said "No"; that Thoma said the log market might go down. Z. S. Massey, the log superintendent for appellant, testified that Thoma was under him, and he under E. J. Chalfant; that the extent of Thoma's authority was to buy the logs on the bank and binders and floats sufficient to raft them without waste; that Thoma bought logs up and down the river for appellant for five months, and bought 1,500,000 feet. E. J. Chalfant testified to the same effect with reference to the authority conferred upon Thoma. He further testified that Mr. Dowdy came to him, and, in trying to convince him that appellant should take the logs left on the bank of the river he told him that Thoma had gone so far as to point out trees on their land to be cut for floats and binders; that he responded to Mr. Dowdy's argument that he would take any logs which had been pointed out by Thoma and cut and delivered for that purpose; that he did not tell Dowdy that, if Thoma had contracted for the logs he would take them. At the conclusion of the evidence, appellant made a request for a peremptory instruction, which was refused, and the refusal of the court to give this instruction is urged as reversible error. [1] There is a sharp conflict in the evidence as to whether Thoma agreed to buy appellees' entire output of logs to be cut and delivered in the use of two saws and three teams, during the logging season, lasting from 60 to 90 days, not to exceed 1,000,000 feet, at a stipulated price. On account of the conflict Relative to the contract, appellant intro- in the evidence, this issue became strictly a duced Pete Thoma, M. F. Collins, Z. S. Mas-jury question, and it was not error to subsey, and E. J. Chalfant. Pete Thoma testified that he had no authority to buy logs for future delivery; that the only authority given him was to purchase logs on the bank of the river and to buy binders and floats to raft them; that he did not buy the entire output of appellees for the season; that he bought three separate lots, on three separate and distinct contracts, from appellees; that he told Wilson as he went up the river that he would scale and take up the logs on the bank of the river, now in controversy, as he came back, but at that time he mit that issue to the jury. [2] Whether or not there is any dispute in the evidence as to Thoma's authority to make a contract for the future delivery of logs has given us some pause, but, after a very careful consideration of the evidence, we have concluded that a reasonable inference might have been drawn from all the facts and circumstances in the case to the effect that he had apparent authority to make the contract. He was the only representative of appellant on the ground, and for five months bought a large number of logs, estimated at (232 S.W.) 136(4)-Parties may agree that delivery during good health shall be essential to complete contract. The parties may agree, as a condition precedent to a complete and enforceable contract of insurance, not only that there shall be a delivery of the policy, but also a delivery while insured is in good health. 1,500,000 up and down the river. There was [ 3. Insurance 4. Insurance 668(3)-Facts held to make life insurance policy provided that, if a full [3] If Thoma had authority to make a contract for future delivery of logs on the bank of the river, and made such a contract with appellees, through their agent, the contract was not void, as being contrary to the statute of frauds, for the undisputed evidence shows that he scaled and took up three batches of logs, as well as binders and floats with which to raft them. There was no controlling issue, therefore, in the case, sustained by the undisputed evidence, which warranted a peremptory instruction, and the court properly refused appellant's requested for a directed verdict. Objections are urged to instructions given and refused. We have carefully examined both. We think every issue presented by the pleadings and evidence was presented to the jury under proper instructions. No error appearing, the judgment is affirmed. (149 Ark. 257) Where a life insurance application providthat, if the premium was paid with the application, such payment was made subject to the conditions in an attached receipt, and the receipt provided that no conditions or agreements other than those printed therein and in the application should be binding, the receipt must be considered in connection with, and as a part of, the application. 6. Insurance ~151(1)—Undelivered policy held to be considered in construing application and premium receipt as to time of taking effect of contract. In determining the meaning of a clause in JENKINS v. INTERNATIONAL LIFE INS. a receipt for the first premium on a life in CO. (No. 55.) (Supreme Court of Arkansas. June 20, 1921. Rehearing Denied July 11, 1921.) 1. Appeal and error 889 (3)-Complaint treated as amended to conform to proof, when evidence not objected to. In an action on a life insurance contract, where there was no objection to the testimony adduced by plaintiff, the complaint will be treated as amended to declare on an oral contract of insurance, such as plaintiff contends was evidenced by the documentary and oral testimony in the case. 2. Insurance 131(1)-Contract complete, when minds of parties meet. A contract of insurance may be made by parol, and where the minds of the parties for a valuable consideration have met on all the terms of the contract, it is complete and enforceable, though it was intended by the parties to be evidenced by a policy which, because of some fortuity, was not delivered before the death of insured. surance contract as to the time when the insurance should take effect, the policy which had been issued and sent to the insurer's agent to be delivered on certain conditions, and which provided that it should take effect as of a certain date, but not until the first premium was paid and the policy delivered, was competent evidence to be considered in connection with the application and receipt. 7. Insurance 137 (4)-Agent held without authority to take "note," in lieu of "cash," as payment essential to render contract effective from approval of application. Where a life insurance application provided that the insurance should not be in effect until the premium had been paid in full in cash and the policy delivered, and that if the premium was paid with the application the payment was to be subject to the conditions in an attached receipt, and the receipt contained blanks for acknowledgment of the receipt of cash or notes, and provided that, if a full cash settlement had been made with the application, the insurance would be in force from the date of the approval of the application by the medical director, an agent had no authority to accept For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and I'ndexes |