126 Ark. 548 | Ark. | 1917
Appellant sold appellees certain timber standing on lands which he owned on December 30, '1911, and gave them two and one-half years in which to cut and remove it. Certain timber was cut after the expiration of this time by appellees, and this suit was brought to recover its value. The complaint recited that timber had been cut on other lands owned by appellant which he had never sold appellees. There was also included in the complaint a count for damages resulting from throwing timber and brush in a creek in such a manner as to dam up the creek and cause it to overflow appellant’s lands.
It was alleged that the timber in controversy had been manufactured into shingles and a lien upon them was claimed, and an attachment was sued out and levied upon the shingles.
The answer denied all the material allegations of the complaint, and while it was admitted that certain trees had been, cut after the expiration of the time originally granted it was alleged that an extension of the time had been given for cutting these trees. Appellees asked for damages on account" of the attachment and to compensate the cost of repairs they were compelled to make to a road used by them in hauling out their shingles, which appellant had obstructed.
A timber deed was executed at the time the original contract was entered' into which described the land upon which the timber had been sold, the same being four forty-acre tracts of land, for the consideration of $600.00. Appellees erected a mill to manufacture this timber, and after its completion it was ascertained that the mill- was not situated on any one of the forty-acre tracts of land described in the deed. It was contended by appellees that the mill was on land on which they had bought the timber, as they claimed to have bought all of appellant’s timber, but they later discovered that the deed did not describe the land on which the mill was located. Appellees testified that when this discovery ‘was made they negotiated with appellant for the satisfaction of the demand for the timber so erroneously cut, and for the extension of the time to cut the timber described in the deed. These negotiations Were concluded by the payment of a hundred dollars" to appellant, who executed the following receipt:
“Little Maumelle, Arkansas.
March 26, 1913.
“Received one hundred from Harrison brothers for balance of adjoining the timber they bought from me on same condition as the other, and I agree to extend the lease for six months after the original lease expires. (Signed) W. Nothwang.”
It is insisted that the court erred in giving at appellees’ request instruction numbered 8, which reads as follows: ■ '
“You are instructed that if you find from the evidence that defendants refrained from cutting their timber which they could have had time to cut during the remainder of the year 1914 under a promise from the plaintiff that they could cut and remove their timber after January 1, 1915, then this would constitute a valuable consideration sufficient to support the claim of extension of time.”
In Page on Contracts, section 274, a valuable consideration is defined as follows: •
“Sec. 274. A valuable consideration is some legal right acquired by the promisor in consideration of his promise, or forborne by the promisee in consideration of such promise. A common form of stating the same principle is that a -valuable consideration for a promise may consist of a benefit to the promisor, or a detriment to the promisee.
“The use of ‘benefit’ and ‘detriment’ in this .connection needs explanation. While correct if properly understood, it is liable to misconstruction. ‘ Benefit’ does not refer to any pecuniary gain arising out of the transaction, nor ‘detriment’ to any pecuniary loss. It is not possible to wait till the transaction is concluded and the books balanced, to see whether a consideration existed originally. ‘Benefit’ as used in this rule means that the promisor has, in return for his promise, acquired some legal right to which he would not otherwise have been entitled; ‘detriment’ means that the promisee has, in return for the promise forborne some legal right which he would otherwise have been entitled to exercise. The question of the ultimate financial loss or gain is foreign to the doctrine of consideration, if the parties each have received what they have^ agreed upon.”
See, also, sections 67 and 69 of the article on “Contracts” in 6 Ruling Case Law. See, also, Elliott on Contracts, sec. 203; Beach on the Modern Law of Contracts, sec. 167; Parsons on Contracts, p. 482; Hammon on Contracts, p. 675.
Many cases are cited by tbe above authorities in support of the law as there announced.
. It is earnestly insisted that the court erred in refusing appellant’s instruction numbered 7, as follows:
“You are further instructed that if you find from the testimony that any of the shingles attached and levied upon by the sheriff in this case were shingles produced from the plaintiff’s timber, which was cut since the first of 1915, then your verdict will be for the plaintiff, and you will sustain the attachment.”
A consideration of this instruction would involve the discussion of the evidence in the ease, which appellant says is insufficient to support, the verdict. The instruction set out would have been a proper one had the testimony in appellant’s behalf been undisputed, but such is not the ease. Indeed, there is, to the contrary, a sharp conflict in the testimony upon most of the questions of fact involved; but these conflicts have been resolved by the verdict of the jury against appellant’s contention.
. A verdict was returned by the jury in appellees’ favor upon their counterclaim in the sum of $500, and • we cannot say this verdict is unsupported by the evidence, or is excessive. The jury has found, upon conflicting evidence, that appellees did not wrongfully cut any of appellants timber, and, consequently, the attachment was wrongfully sued out and appellant was liable for' any damage to the timber occasioned thereby. There was also proof to the effect that appellant had torn up a road which appellees had prepared for their use in hauling out the products of their mill, and when this road was repaired it was again obstructed by appellant and the timber was damaged on account of the delay thus occasioned. But all of these questions were submitted to the jury under instructions which properly declared the law applicable to the respective contentions of the parties.
Finding no prejudicial error the judgment of the court below is affirmed.