97 Ark. 623 | Ark. | 1911
(after stating the facts). 1. It is contended that there was no testimony to support the verdict as to damages for delay in building the two switches in section 27, but there was shown to have been delay in the building of these switches caused by appellant, and the manager of the Bryant Lumber Company swore that it was damaged by reason of such delay in the sum of $550 for the one, and in the sum of $300 for the other. His statement was introduced without objection, and without any exception saved and preserved in the motion for a new trial, and appellant thereby waived any right to complain of the testimony here. Texas & St. Louis Ry. Co. v. Kirby, 44 Ark. 103; Mt. Nebo Anthracite Coal Co. v. Williamson, 73 Ark. 530; Ince v. State, 77 Ark. 418; Planters’ Mutual Ins. Assoc. v. Hamlin, 77 Ark. 27. Having been permitted to 'go to the jury without objection or cross examination of the witness and not excluded on motion as it could have been done, it will be presumed that there were matters and facts upon which to base the estimate which an examination would have disclosed, and the jury were authorized to weigh it accordingly.
2. As to failure to -complete the unloading switch, there was conflict in the testimony, -but there was testimony from which the jury might have found that the dump and embankment was constructed in substantial compliance with the award of the arbitrators; that -appellant refused to complete it after such award, and stated that it would not do so without regard to its construction if built in exact accord with the finding of the arbitrators. This being true, there was no necessity for any tender of further performance by appellee. An offer to perform by appellee would have been useless, as shown by the testimony, and it -was not necessary to make it. I.t was waived by appellant’s conduct. Scott v. Jester, 13 Ark. 437; Hunt on Tender, § § 55-6; Bluntzer v. Dewees, 79 Texas 272; McPherson v. Fargo, 74 N. W. 1057; Union Central Life Ins. Co. v. Caldwell, 68 Ark. 505, 521.
The testimony as to the damage by reason of the failulre to construct this switch was also conflicting. It was stated, -however, by one witness, that the company had cleared the right-of-way and built the embankment at a cost of $1,100, and had supplied two carloads of ties that were -worth from 16 to 18 cents each. No abjection was made to the introduction of this testimony; and while it was contradicted by that of the engineer in the estimate of how much work was actually done, and how much it ought to have cost to do it, the jury found in favor of ap-pellee on the point.
3. Since appellant was bound by the terms of its own contract first made to have a railroad constructed beyond the point, ¿amp, to where appellee tendered its logs for shipment and before that time, and since it -had in fact -constructed a railroad over the right-of-way and embankment of the said Territory Railroad Company, over which it was ¡having its own logs hauled, and those of appellee could have been by -it transported, it was bound by the terms of the contract and the award to receive said logs there, -and liable for the resultant damage for refusing to do so. The testimony showed that there was no other way to get the timber out than over this road; that a large amount -of it was' lost -and destroyed, and that the Bryant Company was compelled to pay $500 for the release from the person with whom it had contract for -the delivery of the timber because of its breach of contract in not permitting it to be performed. The witness Paisst estimated the company’s damages on this point at $1,500, without objection, after stating tíre items and facts upon which it was based and tSe elements entering into it.
4. We hold that the point submitted to arbitration was within the scope and purview of the contract made between the parties, and, the award having been made, appellant was bound to its performance and liable in damages for its failure. It secured valuable rights by this contract, upon the theory that both companies should foe placed in like condition on equal terms for the delivery of timber and sale of lumber manufactured from timber shipped over said road that was and is in fact owned by the same persons who own1 the appellant company with which this original contract was made. Since they in effect have an advantage in -the sale of lumber, the timber for the manufacture of which comes over said Territory Railroad, of the division received by said company as an originating line from the connecting carrier, we see no reason why appellants should not pay to' appellee company an amount equal thereto upon its lumber manufactured from logs delivered over said road, as the arbitrators have found that they should do. There was testimony on this point showing the amount of $2,650.35, figured at a less rate than the division of rates shown to be received by said Territory Railroad.
Nothing is being asked from the Territory Railroad Company in this suit, and only a performance of its 'contract by appellant in accordance with the award made thereon under its terms. The verdict of the jury was for the lump sum of $3,978 damages, a little more than half of the amount claimed for all the injuries complained of, and there was no finding of any sum on any separate claim made under the award. It shows that the jury did not accept the-largest statement of damages of any witness, and the testimony is sufficient to sustain their verdict.
The judgment is affirmed.
