85 Ark. 252 | Ark. | 1908
(after stating the facts.) The answer admits that the negotiations and contract in question were not had or made with appellant Mary Lee Dennis. Appellee, Young, in his testimony states that the contract was made by him and his agents with Dr. Long representing himself as acting as agent for the plaintiff, Mary Lee Dennis, and her husband. J. W. Dennis says that Dr. Long was not the agent of himself or of his wife; that Dr. Long and himself understood that the lands embraced in 'the timber deed were the lands owned exclusively by his wife, and that the lands owned by her and Rhodes as tenants in common were not .intended to be included in the deed, and that this understanding was reached before the deed was executed. Dr. Long says that he was not the agent of Dennis or of his wife, and that he bought the timber for himself and sold at an advance to Young. It is admitted that the plaintiff Mary Lee Dennis only received $600 for the timber, and that that is the consideration recited in the deed. Young paid Dr. Long $1,400. for it. The only testimony as to the agency of Dr. Long was the declaration that he made to Young and others.
It is well settled in this State that the transactions and declarations of a person are not of themselves evidence of his agency as against the principal. Holland v. Rogers, 33 Ark. 251; Carter v. Burnham, 31 Ark. 212; Howcott v. Kilbourn, 44 Ark. 213. Moreover, it is hardly reasonable that Mary Lee Dennis should convey timber on lands, the title to which was in her and another .as tenants in common. The court is of. the opinion that a clear preponderance of the evidence shows that only the timber on the lands in the complaint owned exclusively by Mary Lee Dennis was embraced in the timber deed.
For the reasons above given, the cause is. reversed with directions to the chancery court to enter a decree enjoining appellee from cutting timber from the lands described in the complaint as owned by Mary Lee Dennis and R. J. Rhodes as tenants, and such further decree as may be necessary to settle the rights of the parties hereto not inconsistent with this opinion.
On account of the view of the case had by the chancellor, the issues .raised "by the cross-complaint were not adjudicated; and as to that branch the cause is remanded for such further proceedings as the chancellor may deem necessary to adjudicate the rights of the parties.