129 Ark. 197 | Ark. | 1917
Appellee filed a bill against W. B. Ferguson and appellant, C. E. Ferguson, in the Pulaski Chancery Court for a settlement and accounting growing cut of the shipment of twenty-eight car loads of lumber, between the 14th day of July, 1909, and the 21st day of February, 1910, from appellee’s sawmill at Reader, Arkansas, which shipments were the subject of an arbitration agreement signed by C. E. Ferguson, on the one part, and Geo. W. Rogers, individually, and for thé Reader Mill Company and Bank of Commerce, on the other part.
Separate demurrers and answers were filed to the bill by W. B. and C. E. Ferguson. Both denied all the material allegations in the bill, and C. E.' Ferguson pleaded as a separate defense that his responsibility, if any, was founded on the arbitration agreement, which was withdrawn and revoked in advance of the arbitration and award; and that there was no sufficient consideration for the agreement.
By agreement of all parties, the cause was referred to J. S. Maloney as master, to state an account between the parties upon the depositions and exhibits filed in the ease. The master found that appellant was indebted to appellee in the sum of $1,045.70. He arrived at the result by finding that W. B. Ferguson shipped 87,142 feet of lumber, valued at $12 per thousand, from the Reader mill, belonging to appellee, for which Ferguson had not accounted and settled. The master made an alternative finding that if the court should hold appellant and his brother, "W. B. Ferguson, to the strict letter of the. arbitration agreement and place the burden upon W. B. Ferguson to accurately account for all lumber shipped from said mill, appellant would be indebted to appellee in the sum of $2,305.48. The master arrived at this result on the theory that the evidence was not certain and absolute as to what disposition had been made of 192,123 feet of lumber, valued at $12 per thousand.
The court heard the master’s report upon exceptions filed by each party, and upon the whole case decreed in accordance with the first finding of the chancellor, except as to the value per thousand placed upon the lumber by him. The chancellor found that the lumber was of the value of $10 per thousand, instead of $12 per thousand.
An appeal and cross-appeal have been prosecuted from the findings and decree of the chancellor, and the case is before this court for trial de novo.
Appellant insists that there was no consideration for the arbitration agreement, and had there been a consideration, it was his privilege to withdraw from the contract at any time before the award. The undisputed facts are to the effect that W. B. Ferguson was employed by appellee to operate a lumber business which he was conducting in the name of the Reader Mill Company at Reader, Arkansas; that he was employed shortly after the purchase of this business in November, 1908, and remained until the latter part of February, 1910, at which time he was discharged. It was a part of his dutv to sell the output of the mill and to render an accounting of the cut and sales to appellee at stated intervals. Prior to bis discharge, and thereafter, a controversy arose between "W. B. Ferguson and appellee concerning the disposition made by him of lumber during his term of employment. Appellee had instituted attachment and garnishment proceedings, and other suits and prosecutions had been threatened. The Fergusons and their families were much disturbed, and at this juncture C. E. Ferguson stepped into the breach on account of his brotherly affection, and reached an amicable adjustment of the differences existing between W. B. Ferguson and appellee.
As a method of settlement, C. E. Ferguson purchased all claims by appellee against W. B. Ferguson for $2,416.86, except twenty-eight cars of lumber valued at $3,278.44, and as to that claim, entered into a written contract with appellee to ascertain by arbitration and award the liability of "W. B. Ferguson to the Reader Mill Company on account of said shipments, and to pay the award as soon as rendered. It was admitted in said contract that twenty-one cars of the lumber had been shipped by "W. B. Ferguson from the Reader mill and that said cars contained 246,458 feet of lumber. It was also admitted that appellee claimed the value of seven additional cars but that "W. B. Ferguson claimed that these seven additional cars were included in the twenty-one cars he had shipped. It was also admitted that "W. B. Ferguson purchased some lumber from the German National Bank for $500, stacked on the yards of Reader Mill Company, after he took charge of the plant under employment from appellee. It was also provided in the arbitration agreement that the burden of proof should rest upon "W. B. Ferguson, or the companies claiming by, through or under him or them. It was provided that John Fletcher should act as arbitrator, and in case he should decline or fail to act, that M. J. Ringlehaupt should act and that his award should be final. "While the arbitration was pending before John Fletcher, he died, and appellant and his brother declined to submit the matter to M. J. Ringlehaupt. This suit was then instituted.
The master found that cars Nos. 27203,15421, 27482, 101772, 21089 and 39407 had been adjusted and settled in what was denominated by the parties as ‘ ‘ The Ten Car Settlement;” that the evidence was insufficient to show that appellee had any lumber in two other cars. This left only twenty cars for adjustment and settlement. This finding of ; the chancellor was supported by the weight of evidence.
Appellant contends that the lumber shipped in the twenty cars was his private property; that he had purchased the lumber from the German National Bank, along with oth¿r lumber, for $500. He had no lumber on the ground save and except lumber he had purchased from the German National Bank. In order to ascertain how much lumber he had, it became necessary for the master to ascertain the amount of lumber sold to him by the German National Bank. This could be'ascertained in no other way than-by finding the amount of lumber originally owned by the German Nátibnal Bank. and the amount it had sold and shipped prior to the sale of its remnant of lumber to W. B. Ferguson. The lumber plant at Reader was formerly owned by the Phoenix Lumber Company. On September 8, 1908, the Phoenix Lumber Company was thrown into bankruptcy and a receiver appointed to take charge of its assets. An inventory taken in the bankrupt proceeding on the Sth or 9th of September, 1908, disclosed the fact that the German National Bank was the owner of 678,846 feet of lumber then stacked in the yards. After that date, the German National Bank sold and shipped 473,865 feet, leaving a balance on the yard of 204,981 feet. The master and chancellor so found. There was much evidence tending to show that the German National Bank, after selling and shipping out 473,865 feet of lumber, only had a remnant of 100,000 feet left, but the weight of evidence supports the finding of the master and chancellor that said bank was the owner of 204,981 feet at the time it sold its remnant to W. B. Ferguson. It is undisputed that W. B. Ferguson used 56,000 feet of this lumber in constructing platforms at the plant. He did this, however, without any specific authority from appellee to do so. He did not report the matter to appellee until their differences arose. In the arbitration agreement, all matters of difference between the parties were adjusted except the differences existing on account of shipments contained in the twenty-eight cars, and reserved for future adjustment. By deducting this amount of lumber from 204,981 feet purchased by W. B. Ferguson from the German National Bank, a balance of 148,981 feet was left on the yard belonging to W. B. Ferguson. This is the only lumber he could have owned and shipped in the twenty cars aforesaid. The cars contained 236,123 feet. If it be true that W. B. Ferguson had 148,981 feet in them, then appellee must have had the difference between 236,123 feet and 148,981 feet, or 87,142 feet. The master found, and we presume the chancellor intended to find, that the twenty cars contained 87,142 feet of lumber for which no accounting had been made by W. B. Ferguson to appellee, as trustee for the Reader Mill Company. Adhering to the values placed upon the lumber by the chancellor, a judgment should have been rendered in favor of appellee against appellant for $871.42. Through inadvertence or mistake, judgment was rendered for $770.14.
We think the first finding by the master, as to the amount of lumber unaccounted for by W. B. Ferguson, is supported by clear and convincing evidence. The finding of the chancellor as to the ownership of the lumber in the twenty cars is correct, even tested by the rule of evidence applicable between parties occupying á fiduciary relationship.
The decree will be modified so as to conform to the opinion herein, and, as modified, is affirmed.