Gates v. Flanagin , 182 Ark. 529 ( 1930 )

STATEMENT OF FACTS

This appeal is prosecuted by appellants from a judgment for damages recovered against them by appellee for an alleged breach of a written contract denying him the right to continue cutting the timber sold him by appellants.

The written contract provides the sale of the timber, the requirement that it be scaled on the ground before removal and the timber cut be paid for every two weeks. It also named one Joe Bullock as attorney in fact for appellants, "giving unto the said Joe Bullock full power and authority to represent and act for them hereunder and to do and require any and all things which parties of the first part, or either of them, might do or require, were they personally present, particularly authorizing said Joe Bullock to supervise said cutting and to see that said timber is taken clean as herein provided and to cause said cutting and removal of timber to be stopped at any time there may be a breach of good faith hereunder."

Appellee was authorized under the contract to deduct from the proceeds of the sale of the timber 10 per cent. of the price according to the scale supervised by Joe Bullock, which he was to accept in full payment for his services as representative of appellants who retained a lien on all timber cut until scaled and paid for before removal from the land.

Appellee proceeded with the cutting of the timber and claimed later to have agreed with Bullock to settle with him on the basis of the timber scaled at the mill. He made a few payments, failed to pay for the last timber cut for more than a month after settlement with Bullock for the amount due him as the agent of appellants under the contract, and at the time of such payment filled out and signed a check to appellants for the amount due on the timber and assured Bullock it would be sent to appellants that day. It was not sent for some time afterward and Bullock stopped the appellee from cutting the timber on the land and notified him that it was because of his failure to pay for the timber in accordance with the contract. Appellee then wrote to appellants admitting that be had failed to pay for the timber as agreed, arguing that it would be better to allow him to continue the cutting of the timber, saying that he had already removed the best part of it and assuring them that it would be paid for without delay and also asking that he be allowed to continue with the removal of it. He had no reply to this letter nor any consent to continue cutting said timber, and did not attempt to take any more timber from the lands.

Appellee then brought suit for damages for refusal of appellants to allow him to continue taking the timber from the land, alleging that he had complied with his contract and would he damaged to the extent of $600 because of appellants' breach of the contract by refusing to allow him to remove the timber, etc.

Appellee was allowed to make a statement and introduce testimony conducing to show that he had made a new contract with Joe Bullock about scaling the timber and agreeing that the scale of the mill should be accepted as correct, although he paid Bullock at the time of taking the timber according to the woods scale. He claimed that, because of his understanding with Bullock the designated agent of appellants in the contract, the payment for the logs every two weeks and before their removal from the lands as required by the terms of the contract had been waived. Some testimony and letters of appellee were introduced over appellants' objection and several instructions objected to also given, the court refusing to direct a verdict in appellants' favor on request, and from the judgment against them appellants prosecute this appeal. (after stating the facts). Appellants contend that Flanagin had breached the contract in failing to make payments before removal of the timber from the lands in accordance with its terms, and that the undisputed testimony showed such to be the case, and that the court erred in not directing a verdict in their favor.

It is undisputed that appellee failed to pay for the timber cut before its removal from the land every two weeks in accordance with the terms of the contract, his own letter introduced in evidence admitting that such was the fact and arguing it would be to the advantage of appellants to allow him to continue to perform the contract. He did not contend, however, that he was given permission to proceed after appellants' agent stopped him from cutting the timber, but only insists that, because of the agreement with the agent about the acceptance of the scale at the mill for timber cut, appellants had waived the provision for the payment of the timber every two weeks and before its removal from the ground.

The burden was upon him, of course, to show that an agent with authority to do so had done some act that would amount to a waiver of performance of this condition by appellants. The only authority claimed for the agent was that expressly given in the written contract made with appellee, and a fair construction of it shows only authority on the part of said agent as attorney in fact to represent appellants under the contract and require all things done which either of appellants could require done if personally present, expressly authorizing him to supervise the cutting of the timber and to cause the cutting and removal to be stopped at any time there might be a breach thereof. It was the duty of appellee, in dealing with Bullock, to ascertain the extent of his authority, a limited one by the terms of the contract appointing him. He was acquainted with all the provisions of the contract and necessarily knew that the agent's authority could not be extended by any of his declarations or his conduct in the performance of his duties, unless such conduct was shown to be known to the principals, and that they had acquiesced therein by receiving benefits therefrom. It is not even claimed that appellants had acquiesced in any conduct of the agent's that could be construed as a waiver of the terms of the contract or that they had received benefit therefrom; and he was bound to know the extent of the agent's authority created by the written contract to which he was a party, and that be could only insist upon the performance of the contract, that it was without the agent's authority to waive any of its terms, and the court erred in not so instructing the jury. Korey v. East Ark. Lbr. Co., 181 Ark. 478, 26 S.W.2d 896; American Agricultural Chemical Co. v. Bond, 177 Ark. 168, 6 S.W.2d 2; U.S. Bedding Co. v. Andre,165 Ark. 114, 150 S.W. 413, 41 L.R.A. (N.S.) 1019, Ann. Cas. 1914D, 800; Welch v. McKinzey, 66 Ark. 251,50 S.W. 505; American Southern Trust Co. v. McKee, 173 Ark. 147,293 S.W. 50.

As already stated, the undisputed testimony shows that appellee breached the contract by failure to pay for the timber cut in accordance with its terms, and, having done so, was not entitled, of course, to a recovery of damages for the acts of appellants in denying him the right to proceed further in its performance thereafter, and the court erred in not directing a verdict in appellants' favor as requested.

The judgment is accordingly reversed, and the cause, appearing to have been fully developed, will be dismisses. It is so ordered.