CHAS. F. LUEHRMANN HARDWOOD LUM- (Supreme Court of Arkansas. May 10, 1920. Rehearing Denied June 14, 1920.) 1. Sales 174 Insistence for change in manner of inspection breach of contract by buyer. Where contract of sale of lumber provided that inspection should be made in a certain manner at the mill, an insistence by the buyer that the inspection should be made at delivery as a condition precedent for payment, while contract required payment when loaded, constituted a breach of the contract. 2. Sales 174-Breach of contract as to pay. ment warranted seller in refusing to perform. Where buyer of lumber breached contract of sale by insisting that inspection should be made at place of delivery as condition precedent for payment, while contract required payment when loaded, seller was entitled to refuse to further perform. 3. Appeal and error 1012(1)—Findings not clearly against preponderance of evidence not disturbed. Findings of fact which do not appear to be clearly against the preponderance of the evidence will not be disturbed on appeal. |gages intended to secure the advances made; but the court found that they were in fact bills of sale, and appellees have prosecuted no appeal from that finding. A controversy arose between the parties, and appellant brought suit in replevin for the lumber covered by the bills of sale, and by an amended complaint prayed judgment for damages for breach of the contract to deliver lumber. An answer was filed to the original complaint, in which ownership of the lumber replevied was denied; and, while no answer appears to have been filed to the amended complaint, its allegations were The cause was treated as being in issue. transferred to the chancery court, and was tried without any question of misjoinder of causes of action having been made, and as these causes could, under the act of May 11, 1905 (Acts 1905, p. 798), have been consolidated and heard together, had they been brought separately, we proceed to a consideration of the merits of the questions presented, as did the court below. Appellees resisted the claim for damages upon the ground that appellant had breached the contract by a failure to comply with its terms, and had thereby absolved appellee from the legal duty of continued performance. The court below expressly found the fact to be that appellant had failed to make Appeal from Lawrence Chancery Court; advances upon the lumber; but it does not Lyman F. Reeder, Chancellor. Action by the Charles L. Luehrmann Hardwood Lumber Company against Coats & Green. Judgment for defendants, and plaintiff appeals. Affirmed. Oliver & Oliver, of Corning, for appellant. Smith & Gibson, of Walnut Ridge, for appellees. SMITH, J. appear that the contract contained any such requirement. Under the order of delivery which issued in the cause appellant took possession of the piles of lumber contained in the bills of sale, and, after inspection, shipped it out. The lumber thus shipped measured out 56,984 feet, whereas in the bills of sale the piles so shipped were estimated to contain 70,000 feet, and judgment was prayed for the loss Appellant is a corporation, of profits sustained on this difference of apwith its situs in St. Louis, Mo., and is a deal-proximately 14,000 feet. As to the lumber er in lumber. Appellees were a copartnership, and owned and operated a sawmill at Ponder's Switch, about six miles east of Hoxie on the Frisco Railroad. Appellant and appellees entered into a contract in writing on June 6, 1917, whereby appellees, for a price there specified, agreed to saw for appellant 400,000 feet of gum lumber. The contract contained the following provisions: "To begin cutting by 1st of July, and complete the order in 3 months. Lumber to remain on sticks from 90 to 120 days, or as ordered loaded by C. F. Luehrmann Hw. Lr. Co. "This order to be followed up with regular stock order from Chas. F. Luehrmann, Hw. Lr. Co." covered by the bills of sale, the court found that the sums of money there recited as paid were advanced as portions of the purchase money, and that nothing remained to be done except to grade the lumber according to the "National Rules," as provided by the contract between the parties, and to pay the balance of purchase money when so determined. The court found this balance to be $482.33, and rendered judgment in appellee's favor for that amount. The testimony showed an enhancement of from $10 up per thousand in the market price of the lumber; but the court refused to award any sum as damages for the deficiency of 14,000 feet for the reason that the recitals On August 14, 1917, appellant advanced in the bills of sale as to amount of lumber $500, and on September 9, 1917, made an ad- sold was a mere estimate, and the bills of ditional advance of $250, and on each occa- sale conveyed only the lumber in the piles, sion took a bill of sale for certain piles of much or little, and we are unable to say that lumber therein described. Appellees contend- that finding is clearly against the prepondered that these bills of sales were mere mort-ance of the evidence. (222 S.W.) The court also expressly found the fact to| By the terms of the contract lumber was "to be that appellant had failed to furnish reg- be taken up on grades, National Rules to ular stock orders for additional lumber, and govern (at prices stated), all f. o. b. a 13-cent had failed to pay in cash for lumber when rate to St. Louis," and the terms of payment loaded, and that these defaults in the per- specified in the contract were "2 per cent. formance of the conditions of the contract re- | for cash when loaded." The lumber was "to leased appellees from further performance on their part, and the correctness of this finding presents the controlling question in the case. be taken up" at the mill, and the contract provided how the inspection would be made, and the insistence that the inspection should be made otherwise or elsewhere, as a condition precedent for payment, while the contract required payment when loaded, constituted a breach of the contract. [2] One cannot refuse to perform a contract according to its terms, and thereafter insist that the other party perform. So, if, as the court found, appellant had failed to perform the contract, either by furnishing The senior member of the firm of Coats & Green was also the senior member of the firms of Coats & Inman and Coats & Milner, and appellees insist that this was but one partnership, in which Milner bought Inman's interest and, in turn, sold to Green. It is not clear, however, that this statement is correct; and it does appear that Coats operated at least two mills, and one of them under specifications for sawing or in paying for the firm name of Coats & Milner. That firm also had a contract with appellant to saw lumber, and there was a controversy over its terms; but it would, of course, make no difference whether appellant breached its contract with Coats & Milner if it in fact complied with the terms of the contract it had with appellees. [1] The record contains correspondence between the parties, which shows that the differences between them became accentuated as the correspondence progressed. Appellees were complaining of appellant's failure to inspect and load out the lumber, and in a letter dated March 7, 1918, appellees declared themselves absolved from further obligation to perform because of breaches of the contract on appellant's part. The circumstances stressed in this letter were that a draft drawn lumber taken up, then it could not thereafter [3] The court's finding of fact appears to be not clearly against the preponderance of the evidence, and will therefore be affirmed. RUNDELL v. ROGERS. (No. 22.) (Supreme Court of Arkansas. May 31, 1920.) to cover three cars of lumber (which had been inspected and loaded and shipped by appellant's representative) had been drawn on, and dishonored by, appellant. A reply to this letter was written in which it was stated that"While, if the writer had been in town when this draft was returned, might not have returned it, still I am of the opinion that, without any advice from Mr. Alexander, to the effect that you were going to draw a draft on us A local custom cannot be shown to render for the stock, and if he had advised us you were going to ship this stock subject to de-contravention of the rule that he is not rea landlord liable for failure to make repairs in livered inspection, and taking in consideration the fact that the office had no means of know- quired so to do in the absence of agreement or ing how you are in your inspection, it would appear to be perfectly all right for the office to have had a doubt as to the advisability of paying the draft without having specific instructions." This letter also stated that "We think, however, that we should see the lumber before we pay for it practically in full." The imposition of this condition in regard to inspection operated as a demand that final inspection should be made at the point of delivery, rather than at the point of shipment, and the contract did not give that right. statute. Appeal from Circuit Court, Saline County; M. H. Holleman, Special Judge. Action by Bee Rogers against W. R. Rundell. From judgment for plaintiff, defendant appeals. Reversed, and cause remanded for new trial. Appellant, pro se. J. S. Utley, of Benton, for appellee. WOOD, J. This action was brought by the appellee against the appellant. The appellee alleged that he rented about five acres of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes land from the appellant which was to be cultivated in corn during the year 1918; that appellee was to pay one-third of what was produced to the appellant; that appellant with the permission of appellee gathered his share of the corn; that in doing so he gathered more than one-third; that the appellant negligently failed to keep the fence in good repair around the land, and thereby negligently permitted hogs to get in the field and to eat and destroy all the corn that appellant left; that on account of the negligence of the appellant, as set forth, the appellee lost 30 bushels of corn, worth $1.75 per bushel: The appellant denied the allegations of the complaint. The appellee testified to the renting of the land as set forth in the complaint and that he planted the same in corn; that after the crop was laid by he went away and was gone until late in the summer; that on his return he found that appellant's hogs had been getting in the corn; that the inclosure around appellant's pasture, which was within the same general inclosure as the cornfield, was not hog-proof; that he saw appellant's hogs in the pasture and saw hog tracks where they had been passing through an opening under a culvert between appellee's cornfield and appellant's pasture; that appellee gave appellant permission to gather his share of the corn; that later, when appellee came home, he found that all the corn was gone. Over appellant's objection, appellee and other witnesses were permitted to testify that the custom in that locality was for the owner to keep up the fence around a farm when it was rented. To this ruling of the court the appellant duly excepted. According to the undisputed evidence, there was no agreement on the part of the appellant to make repairs of any kind. From a judgment in favor of the appellee is this appeal. [1] "Unless a landlord agrees with his tenant to repair leased premises, he cannot, in the absence of a statute be compelled to do so," is a rule of law well established in this state and elsewhere. Delaney v. Jackson, 95 Ark. 131, 128 S. W. 859; Jones v. Felker, 72 Ark. 405, 80 S. W. 1088; Brown v. Dwight Mfg. Co., 200 Ala. 376, 76 South. 292, L. R. A. 1917F, 997; 16 R. C. L. 1030, § 552, note 18; 18 Am. & Eng. Enc. of Law, 215, 4a. [2] A local custom cannot be shown in order to render the landlord liable for failure to make repairs in contravention of the above well-established rule. 18 Am. & Eng. Enc. of Law, 217. "The tendency of modern decisions is not to imply covenants which might and ought to have been expressed, if intended." Sheets v. Selden, 7 Wall. 423, 19 L. Ed. 166. Moreover, if it were competent to prove a local custom, the testimony adduced by the appel lee in this case was not sufficient to show that the custom was of such long standing as to be generally known. St. L., I. M. & S. R. Co. v. Wirbel, 108 Ark. 437, 158 S. W. 118; Ward Furn. Mfg. Co. v. J. B. Isbell, 81 Ark. 549, 99 S. W. 845. The testimony concerning the local custom was therefore incompetent, and the court erred in admitting it. The error is prejudicial to appellant. The judgment is therefore reversed, and the cause will be remanded for new trial. HARDEMAN v. ARTHURS. (No. 21.) (Supreme Court of Arkansas. May 31, 1920.) 1. Landlord and tenant 323-Contract held to make cropper employé not tenant. A contract, whereby one party was to furnish the tools, teams, seed, and land and the other to furnish the labor according to instructions of the first party, with nothing to show an intention to give the second party exclusive dominion of the land or of the crops planted employé rather than that of landlord and tenthereon, creates the relation of employer and ant, though the land was to be cropped on shares. 2. Landlord and tenant 326 (6)-Title to crop under lease on shares is in landlord, so that a purchaser from cropper is guilty of conversion. Ordinarily when the parties occupy the relation of landlord and tenant the title to the crop is in the tenant, but where they occupy relation of landlord and cropper on shares, the title to the crop is in the landlord, so that in the latter case a purchaser from the cropper is guilty of conversion. County; J. M. Jackson, Judge. Action by L. P. Hardeman against W. A. Arthurs, in which William Wilson and another were brought in as parties defendant on motion of the original defendant. From a judgment dismissing the complaint as to defendant Arthurs, plaintiff appeals. Reversed, with directions to grant a new trial as to defendant Arthurs. Jonas F. Dyson, of Cotton Plant, for ap pellant. Roy D. Campbell, of Cotton Plant, for appellee. WOOD, J. L. P. Hardeman, as party of the first part, entered into a contract with William and Grover Wilson, the parties of the second part, whereby the party of the first part was to furnish the tools, teams, seed, and the land as his part and the parties of the second part were to furnish all the labor necessary to cultivate the 40 acres of (222 S.W.) "Q. At the time they sold the cotton to you, didn't they go into the facts of the case and tell you that they had been dividing this cotton with Hardeman out there? A. Well, I don't know, I don't remember if they did." land "according to the rules of share crop-ously. Appellee knew that the cotton came ping." If the parties of the second part fail- from the appellant's place, but did not know ed to perform the necessary labor according anything about the contract of appellant to the instructions of the first party or his and the Wilsons. On cross-examination the foreman, the first party could have the same appellee was asked: done at the current wages of the country after giving the second party notice, and charge the amount to the second party, to be paid out of their half of the crop. Such were the essential provisions of the contract under which the Wilsons cultivated the land of Hardeman for the year 1917. In December, 1917, the Wilsons sold to W. A. Arthurs a bale of cotton, produced by them on the farm of Hardeman under the above contract. Hardeman, hereafter for convenience called appellant, brought this action against Arthurs, hereafter called appellee, to recover the sum of $129, which appellant alleged was the value of the bale of cotton belonging to appellant that appellee had purchased of the Wilsons. The appellant alleged that appellee knew at the time he purchased the bale of cotton from the Wilsons that the same was raised by the Wilsons on appellant's land under a share cropper's contract. The appellee answered, denying the allegations of the appellant's complaint, and alleged that any cotton purchased by him from the Wilsons was purchased in good faith, without any knowledge of any interest or title of the appellant in the cotton. He alleged that the Wilsons were necessary parties, and moved that they be made parties defendant, which was done. The Wilsons answered, admitting that they made a crop on the land of appellant in the year 1917; that appellant had furnished them certain supplies for that year, but alleged that they had performed work for the appellant, and that upon an accounting with appellant, including the bale of cotton sold by them to the appellee, they would be due the appellant the sum of $32.50, which they tendered in open court. They further alleged that appellee purchased the bale of cotton from them in good faith, without any knowledge or notice of appellant's claim on the cotton. Appellant replied to the answer of the Wilsons, and set up that they were indebted to him in the sum of $87.70, for which he asked judgment. The appellant testified that the Wilsons worked a share crop with him. The testimony of the Wilsons, in substance, was to the effect that they made the contract to make a crop on appellant's place in the year of 1917; that appellant was to furnish everything and get one-half. They made five bales of cotton, and divided it all with appellant except the last bale, which was sold by them to the appellee for $116.44. Appellant testified that the Wilsons raised five bales of cotton, including the bale in controversy, under the share crop contract, which he made an exhibit to his complaint. The court instructed the jury to return a verdict in favor of the appellee, to which ruling the appellant excepted. The appellant prayed for the following instruction: "You are instructed that the title to the crop raised by one working on the shares is in the landlord, and one who purchases same or any part thereof is responsible to the landlord for the conversion thereof." The court refused this prayer, to which ruling the appellant duly excepted. A judgment was entered, dismissing the appellant's complaint as to the appellee Arthurs, from which is this appeal. [1] The court erred in instructing the jury to return a verdict in favor of the appellee. The contract, as we construe it, clearly creates the relation of employer and employé, rather than that of landlord and tenant. There is no language in the contract indicating that the share of the crop which appellant was to receive was for the use or rent of the land, or that the possession of the land was surrendered by the appellant to the Wilsons for the year 1917. There is nothing to show that the Wilsons had either exclusive dominion of the land during that period or of the crops to be planted thereon, giving them the right to pursue their own methods in the cultivation thereof, and the right to gather and hold the same as their own, until the division was made between them and the appellant. On the contrary, the language of the contract shows that appellant had the right to direct the Wilsons as to how they should perform the labor necessary for the cultivation and harvesting of the crop. [2] In Tinsley v. Craige, 54 Ark. 346-349, 15 S. W. 897, we said: "Ordinarily when the parties occupy the relation of landlord and tenant, the title to the crop is in the tenant, and he pays the landlord rent in kind or otherwise; and in general where they occupy the relation of landlord and cropper on shares, the title to the crop is in the landlord, and he delivers a part of it to the cropper in payment of his services." Appellee testified that he bought the bale of cotton from the Wilsons; that he had no notice that he had any interest in the cotton. The relation is determined by the terms He had bought two bales from them previ- of the contract, which in this case plainly shows that the relation, as before stated, | lars in a mine, court did not err in permitting is that of employer and employé rather than landlord and tenant. See, also, Hammock v. Creekmore, 48 Ark. 264, 3 S. W. 180; Neal v. Brandon, 70 Ark. 79–82, 66 S. W. 200; St. L., I. M. & S. Ry. Co. v. Hardie, 87 Ark. 475-483, 113 S. W. 31; Valentine v. Edwards, 112 Ark. 354-356, 166 S. W. 531. For the error indicated, the judgment is reversed with directions to grant appellant a new trial as to appellee Arthurs. the complaint and proceedings in a prior suit to be read to the jury for sole purpose of showing that defendant's foreman knew the location of the dividing line between plaintiff's and defendant's mines at the time the pillars were pulled; such foreman having testified to the nature of the former suit and disposition made of it, thereby showing a knowledge of the contents of the complaint. 7. Partnership 219(4)-Service on one of several partners warrants judgment against partner served. Where members of a partnership are sued, and service is only had upon one of them, a NEW CORONADO COAL CO. et al. v. JAS- judgment in favor of plaintiff binds the served PER. (No. 397.) (Supreme Court of Arkansas. May 10, 1920. Rehearing Denied June 14, 1920.) 1. Removal of causes 86(5) Complaint charging joint liability against resident and nonresident must be traversed in petition for removal. Material allegations of a complaint, charging joint liability against a resident and a nonresident defendant, must be traversed in a petition for removal to the federal court by a statement of facts conclusively showing that the plaintiff fraudulently joined the defendants in the suit to deprive the nonresident defendant of his right to a trial of the cause in the federal court, and such petition should preclude every theory of joint liability. 2. Removal of causes 86(5)-Petition for not sufficient to preclude theory of joint liability. In an action against resident and nonresident defendants to recover damages for conversion of coal, a petition for removal of the cause to the federal court held not to sufficiently traverse the material allegations of the complaint as to the joint liability of the defendants. 3. Master and servant 313-Joint liability for conversion. Where a master directs employé to take property of a third person, the master and servant are jointly liable for conversion. 4. Mines and minerals 51 (3)-Evidence held to sustain finding that defendant pulled pillars in coal mine. In an action by a mine owner for conversion of coal and for damages occasioned by the pulling of pillars in the mine, evidence held sufficient to sustain finding that defendants pulled the pillars in question. 5. Mines and minerals 51(3)-Evidence held to show wrongful mining of coal. In an action for conversion of coal, evi dence held sufficient to sustain a finding that the acts of defendants in taking coal from plaintiff's mine were willful, wanton, and malicious. 6. Evidence 208 (2) -Record of another suit admissible to show knowledge of certain facts on the part of defendant. In an action against several defendants for conversion of coal and wrongful pulling of pil partner personally and as a partner, and partnership funds impounded by attachment and garnishment. 8. Appeal and error 1064 (1)—Instruction permitting judgment against partnership instead of member harmless. In an action against members of a partnership, only one of whom was served with process, an instruction directing the jury to find against the "New Coronado Coal Company," the firm name, could not have prejudiced the defendant served on the ground that a partnership cannot be sued as an entity and judgment rendered against it as such. 9. Trial 279-Party doubting meaning of instruction must make specific objection. If there is any doubt as to what the court means in an instruction, party not satisfied therewith must make a specific objection challenging it on account of ambiguity. 10. Mines and minerals 51(5)-Profits properly awarded as damages for tortious act. Where adjoining owner wrongfully pulled pillars in plaintiff's coal mine, causing a squeeze and rendering it impossible for plaintiff to mine his coal, which he had sold under contract, court properly charged that the measure of damages was the profit that plaintiff would have netted on the unrecoverable coal; such profits being ascertainable with reasonable certainty. 11. New trial 102(3)-Diligence not shown where one of several defendants knew of witness. Court did not abuse its discretion in denying a motion for new trial for newly discovered evidence, where at least one of several defendants moving for a new trial must have, prior to the trial, known of the witness, and that he would testify favorably for defendants. Appeal from Circuit Court, Sebastian County; Paul Little, Judge. Action by John W. Jasper against the New Coronado Coal Company and others. Judgment for plaintin, and certain defendants appeal. Affirmed. Warner, Hardin & Warner, of Ft. Smith, for appellants. Covington & Grant, of Ft. Smith, for appellee. |