124 Ark. 143 | Ark. | 1916
J. M. Davis sued the W. D. Reeves LumberCompany to recover the sum of $8,000 for the alleged breach of a written contract whereby J. M. Davis and C.C. Giles agreed to cut and haul for the W. D. Reeves Lumber Company the timber on the lands described in the contract for a stipulated price per thousand feet. The complaint alleged that Giles had released all his right in the contract to the Reeves Lumber Company, and he was also made a party defendant to the action. The jury returned a verdict for the plaintiff for $3,375. Judgment was rendered in favor of the plaintiff against the W. D. Reeves Lumber Company for that amount. The lumber company has appealed. The material facts are as follows:
The W. D; Reeves Lumber Company entered into a written contract with J. M. Davis and C. C. -Giles to tout and haul to a certain point on the Mississippi River the timber on lands described in the contract at a stipulated price per thousand feet. It was provided in the contract that the timber should be cut and hauled by the first day of September, 1916, and the contract was executed on July 8, 1914. Davis and Giles at once entered upon the land with a full line of equipment,including about thirty teams, for the purpose of performing the contract on their part. On August 10, 1914, the Reeves Lumber Company notified them to stop hauling the timber that was already cut because financial conditions were such that the lumber company could, not get money to meet the pay rolls. Giles and Davis stopped the work and Davis thereafter asked the president of the lumber company several times when they would be allowed to commence operations again and was told by Mm that they conld do so when conditions would permit. A short time after this Giles called Davis up and told him that he wanted to get out of the contract. On October 1,1914, the president of the lumber company told Davis that the. contract had ¡been canceled by Giles and that he would not permit any work to be done under the contract until Giles and Davis had a settlement. Davis told the president that Giles had ¡no right to cancel the contract and that he knew nothing about him having done so. He also told him that he would not waive any of his rights under the contract and expected to carry it out. About October 16, Davis entered! upon the land again and proceeded to perform ¡the contract. On October 20,1914, the lumber company notified him to quit cutting timber under the contract and stated that it would not pay for the cutting, and denied the authority of Davis to proceed with the work.
Davis testified that he was financially able to perform ■the contract and also testified in regard to the profits he could have made under it. It is not necessary to abstract the testimony on this point, but it is sufficient to say that under the evidence .adduced by the plaintiff his profits would at least have equaled the amount recovered by him ■before the jury.
On the part of the defendant it was shown that Giles entered upon the land soon after the contract had been executed and that he did nearly all the work that was done before the lumber company requested them to cease working. On the 1st of October, 1914, Giles canceled the contract with the lumber company.
It is first contended by counsel for the defendants that the demurrer of the defendant lumber company to the complaint should have been sustained. The demurrer was based on the ground that the plaintiff could not bring the action in his name alone, but should have joined Ms partner, Giles, in the complaint. Section 6007 of Kirby’s Digest provides, “Of the parties to the action, those who are united in interest must be joined as plaintiffs or" defendants; but when, for any cause, it !may be necessary for the purpose of justice, a person who should have been joined as plaintiff may be joined as defendant, the reason therefor being stated in the complaint. ’ ’
In Ingham Lumber Co. v. Ingersoll, 93 Ark. 447, the court held that in a suit upon a contract made by a.firm, all of the partners have an interest in the subject-matter and are necessary parties. In that ease, in construing section '6007 of Kirby’s Diigest, it was said that where a partner refuses to join in an action to recover a claim'>o'f .the firm he may be made' a party defendant. In the instant case the complaint of Davis alleges that Giles had released and relinquished all of his rights in the [eontracit to the Reeves Lumber Company. Giles in h|is answer admitted that he had canceled the Contract and released th!e Reeves Lumber Company by a written release in the name of Davis and Giles.
The plaintiff acquiesced in stopping the work in August and under the undisputed evidence there was no breach of the contract until it was canceled on Ocober 1, 1914, by Giles and the lumber company. Therefore, instruction No. 2 was a correct instruction on the tmeashire of damages and was as favorable to the theory of the lumber company as jit was entitled to.
Davis had testified that he was financially able to perform the contract, and the excluded testimony was. competent to discredit Ms testimony, and, also, as affirmative evidence tending to show that he was not able to perform the contract after ¡Giles had terminated it, as far as he was concerned, and thus to establish the defense of the lumber company, that Davis was ,mot able to perform it.
For the error in refusing the offered testimony, the judgment will be reversed and the cause remanded for ¡a new trial.