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paper the Memphis market where blue stained duty, as stated in Wynne v. Schnabaum, sucotton was all the way from eighteen to thirty- | pra-to exercise good faith, due diligence, five cents and you sold mine for sixteen and and ordinary discretion in selling the goods twenty cents, and it is not satisfactory at all, consigned for sale, and if appellant did this so hold my cotton for better price. Now, I would love to send you check to cover all 1 owe you but I am not able, and I am expecting the cotton to pay itself out of debt."

Appellee explained this letter by saying that what he meant was that he would have been glad to have returned the advance and have taken possession of his cotton, but he was not able to return the advance, and he was not, therefore, in position to demand that appellant surrender the cotton to be sold by some other cotton factor. The letter admits the amount advanced; but this was not in dispute.

[2] The letter was not, however, a part of the contract; but was merely evidentiary of it, and its interpretation was, therefore, for the jury in connection with appellee's explanation of it. The rule in such cases is stated by Mr. Thompson as follows:

"Where a writing thus put in evidence is not a dispositive instrument, but is merely offered for the purpose of showing an extrinsic fact, it will be for the jury to say what inference of fact is to be drawn from it." Thompson on Trials, vol. 1, § 1098, and cases cited; Barker v. Lewis Pub. Co., 152 Mo. App. 706, 131 S. W. 929.

[3] It appears, however, that, even though the testimony is legally sufficient to support a finding that there was a guaranty on appellant's part as to the price for which the cotton would be sold, appellee could not hold appellant liable as a guarantor unless appellant had authority to sell in good faith, at the best price obtainable. The rights and duties of a factor in regard to the sale of cotton consigned for that purpose are fully discussed by Judge Battle in the case of Wynne v. Schnabaum, 78 Ark. 402, 94 S. W. 50; the appellant there being the appellant here. And when we speak of the rights and duties of a factor we mean as there defined, and they need not be restated here.

It is obvious that appellee seeks to hold appellant liable as occupying the dual relation towards him of factor and guarantor, and, this being true, appellee would have had no right to speculate at appellant's expense by holding the cotton for a higher price than the sum advanced if appellant be lieved the price would not go higher, and that the best price obtainable had been offered. If appellant, acting with due diligence, in good faith, and with the ordinary discretion required of a factor, believed, at the time the first sale was made, that the best obtainable price had been offered, then it had the right to accept that price and account to appellee for the difference between that price and the guaranteed price.

in making the first sale appellee should have acquiesced therein, holding appellant ac

countable for the difference between the sale price and the guaranteed price, and if, under the circumstances stated, appellee failed to do so, he released appellant from the obligation of the guaranty.

[5] This is true because it is a well-settled principle of the law of guaranty that a material alteration in the obligation assumed, made without the assent of the guarantor, discharges him, and it would have been an alteration of the contract to deprive appellant of the right to sell the cotton. See section 35 of the article on Guaranty in 12 R. C. L. p. 1083, and the numerous cases cited in the text. J. R. Watkins Medical Co. v. Montgomery, 140 Ark. 487, 215 S. W. 638; Snodgrass v. Shader, 113 Ark. 429, 168 S. W. 567, and numerous cases therein cited.

We think there was no testimony to warrant the submission of the question of negligence on the part of appellant in selling the cotton. It appears from the undisputed testimony now before us that upon the receipt of the cotton in Memphis, it was stored in the warehouse of the Memphis Terminal Company. This is a large cotton warehouse designed for the storage of cotton, used by appellant and a number of other cotton factors for that purpose. Upon placing the cotton in the warehouse, a sample of each bale was obtained and rolled in a piece of paper, upon which the marks and number of the bale from which it was taken were written. The warehouse number was also placed thereon to enable the warehouse company to identify it, and under that number the shipper's mark and number were also placed. After that the sample thus wrapped was placed on the sample table, in the salesroom, and each bale was sold on its merits by those samples. Buyers were shown these samples and sales were made from them when possible.

Wynne testified-and there is no contradiction of his testimony-that there was but little demand for cotton from and after the time of the receipt of appellee's cotton, and the prevailing quotations could not be obtained because of the lack of demand. This lack of demand was accentuated by the constant decline in price, and the first sale made, on May 18th, was the most advantageous one that could have been made under all the circumstances. The cotton was finally sold on January 30th thereafter, or at still later dates, for the following prices: Two bales for 16 cents; four bales for 11 cents; two bales for 10 cents; one bale for 15 cents; one bale for 16 cents; two bales [4] The factor has the right-and it is his for 11 cents; one bale for 12 cents.

(248 S.W.)

67-Damages for Injury to credit recov. erable in separate action.

Damages arising from malicious prosecution of an attachment or on account of injury to credit or loss of prospective profits are not recoverable in the attachment suit on the dissolution of the attachment, but must be re covered, if at all, in a separate action.

The fact that there was a guaranty did 2. Attachment 366-Malicious prosecution not alone deprive the appellant of the right to sell below the guaranteed price, and appellee had no right to impose an arbitrary price and thereby deprive appellant of the right to make an advantageous sale. Appellee was afforded the opportunity to repay the advances and retake the cotton, and declined to do so. Refusing to do this, he had no right to arbitrarily fix the price he would accept for the cotton and continue to hold appellant liable under the guaranty. 2 Mechem on Agency (2d Ed.) § 2527.

Wynne was asked if he had made any special effort to sell this cotton, and he answered that the same effort was made to sell all the cotton consigned to his company. Appellee insists that this was negligence, as special effort should have been made to sell the cotton in view of the declining market. We do not think so. As a factor appellant owed the same duty to all consignors, and had no right to make any concession at the expense of some other consignor in order to sell appellee's cotton, and the testimony shows that equal and customary attention was given to the sale of all the cotton.

We conclude, therefore, that if appellee desired to rely on appellant's guaranty, he should have done so. He had the right to do so. He could have accepted the proceeds of the first sale and have required appellant to account to him for the difference between these proceeds and the guaranteed price, thereby extinguishing his debt for the advances. But he had no right to enlarge the guaranty by depriving appellant of its right to sell, if that right was exercised by appellant in good faith; and we find no testimony to the contrary. The undisputed proof shows that the best price was received which could have been obtained, and it is not shown that the second sale was not made at the best price then obtainable.

66-Measure of

3. Malicious prosecution
damages for detention of attached property
stated.

The measure of damages for the wrongful detention or loss of attached property is the usable value of the property during detention

or the market value at the time of its loss.
4. Malicious prosecution 49-Complaint

must allege want of probable cause.

does not show that the suit or a writ of atComplaint for malicious prosecution which tachment complained of was issued without probable cause does not state facts sufficient to constitute a cause of action.

Appeal from Circuit Court, Lawrence County; Dene H. Coleman, Judge.

Action by E. Sonsee against Jones & Green and others. From a judgment for defendants, plaintiff appeals. Affirmed.

E. F. Duncan, of Newport, for appellant. Smith & Gibson, of Walnut Ridge, for appellees.

It is

McCULLOCH, C. J. This is an action to tained on account of the wrongful issuance recover damages alleged to have been susand levy of a writ of attachment. against Jones & Green, a copartnership, which was the plaintiff in the original action, and against the constable who levied the attachment, and the sureties on his official bond.

It was alleged in the complaint that the

The loss resulted from a collapse in the plaintiff was a resident of Lawrence county, price of cotton, for which the appellant was not responsible, and the judgment of the court below must therefore be reversed, and judgment rendered here for the sum sued

for.

Ark., and was the owner of four horses, a wagon and harness, and some household goods, all of the value of $185, and that, while he was removing from Lawrence county to Jackson county for the purpose of farming, the defendant, Jones & Green, sued him before a justice of the peace of Lawrence county, and sued out a writ of attachment and caused the same to be levied on the aforedescribed property of the plaintiff. He alleged in his complaint that his said property was seized by the constable, and that he was arrested under the writ, that he and his property were taken into custody, and I. Attachment 366-Malicious prosecution that the property was sold to pay the debt 67-Compensatory damages for wrongful attachment recoverable only in action to dissolve.

SONSEE V. JONES & GREEN et al. (No. 152.) (Supreme Court of Arkansas. Feb. 12, 1923. Rehearing Denied March 12, 1923.)

Compensatory damages arising from the loss of or injury to attached property are recoverable only in the action in which the attachment was dissolved.

of Jones & Green, plaintiff in that action. It was further stated in the complaint that

"by reason of the taking of this property, as
aforesaid, the plaintiff was rendered unable
to go to Jackson county and make said crop,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
248 S.W.-19

or to make any crop in 1920, and from moving evidence of false imprisonment, there could to Jackson county, that plaintiff was also de- be no recovery on that account. prived of his legal and constitutional rights Finding no error in the record, the judgas a citizen of Arkansas, and restrained in his ment is affirmed. liberty and in his person, to his actual damage in the sum of $1,000, and to his good name and reputation in the sum of $1,000, punitive damages."

The court sustained a demurrer to that part of the complaint which claimed compensatory damages.

The defendant answered, and, among other things, pleaded as a former adjudication of the issues involved the judgment of the circuit court of Lawrence county, on appeal from the justice of the peace, dissolving the attachment in the case of Jones & Green against the plaintiff in this action, and ordering the return of the proceeds of the attached property to the plaintiff. On the trial of the issue the court sustained the plea of res adjudicata, and judgment was accordingly 'rendered against the plaintiff.

[1] The court was correct in sustaining the demurrer. Compensatory damages arising from the loss of, or injury to, the attached property were recoverable only in the original action in which the attachment was dissolved. Davidson v. Mayhue, 120 Ark. 344, 179 S. W. 371.

[2] Damages arising from malicious prosecution or on account of injury to credit and loss of prospective profits were not recover able in the original action, and must be recovered, if at all, in a separate action. Holliday Bros. v. Cohen, 34 Ark. 707; Goodbar v. Lindsley, 51 Ark. 380, 11 S. W. 577, 14 Am. St. Rep. 54.

[3] The loss of profits set forth in the complaint was too remote to be recovered, as the measure of damages for the detention or loss of the attached property was the usable value of the property during detention or the market value at the time of its loss.

[4] The complaint does not state facts sufficient to constitute a cause of action for ma

licious prosecution, as it does not show that the suit was instituted, or that the writ of attachment was issued, without probable cause. It is unnecessary to determine whether or not the allegations were sufficient to constitute a cause of action for false imprisonment, since there was a trial of that issue so far as it related to the recovery of punitive damages, and there was no proof adduced tending to show that the plaintiff was arrested and taken into custody. The testimony is directed only to the fact that his property was seized and taken away from him under the writ.

On the trial of the cause the court found that the plaintiff was barred by the judgment in the original action from recovering compensatory damages in a separate action, and this was correct. As there was no

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2. Logs and logging

3(13)-Conduct of ven

dors in failing to declare forfeiture held to estop vendors from asserting a lien upon logs manufactured into lumber by purchaser from vendee.

taining a vendor's lien, and deed provided that Where vendors conveyed timber rights reupon default in making payments on purchase price all cutting and removing of timber should cease, vendee to pay for logs cut and removed at specified rates, and vendee sold cut timber to plaintiff, who contracted to manufacture it into lumber and deliver it on cars for defendants, and thereafter vendee defaulted in paydors, and vendors made continuous efforts to ments, but no forfeiture was declared by vencollect payments thereon and permitted plaintiff to manufacture the cut logs, vendors were thereby estopped from asserting a lien upon such logs for which they had been paid stumpage price, even though the cut timber had not been released from the vendor's lien.

3. Logs and logging 3(13)-Where vendor of timber is estopped from asserting lien against purchaser of lumber from vendee, purchaser derives right to possession of lumber manufactured out of such timber from vendee, and not from quitclaim deed from vendor.

Where vendors conveyed timber rights retaining a vendor's lien, and deed provided upon default in making payments on purchase price all cutting and removing of timber should cease, but upon default no forfeiture was declared, and vendors made continuous efforts to collect payments thereon and permitted plaintiffs, who had purchased cut timber from vendee, to manufacture it into lumber upon contract for defendant, and vendors being thereby estopped fendant had the right to possession of the lumfrom asserting a lien against plaintiff, held, deber upon which it had made advances to plaintiff, and hence it was unnecessary for defendant to get quitclaim deed from vendor to get possession of the lumber.

4. Sales 417-Where no damage proved, held not error to allow no deduction for delivery of more than 20 per cent. of No. 2 lumber contrary to contract.

In an action to recover upon a contract to manufacture and deliver different kinds of lum

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(248 S. W.)

ber at specified prices and providing that de- to manufacture grades contracted for, and liveries should average not more than 20 per in failing to deliver same as per contract. cent. No. 2 common, but court made no allow By way of further defense, appellant pleadance to defendant on account of there being ed that it was compelled to purchase a sumore than 20 per cent. of No. 2 common in the

5. Sales 359 (2)-Price of lumber allowed by court held not against clear preponderance of evidence, where evidence of value conflicting.

lumber delivered, held, not error where no dam-perior title to that of appellee to said lumage on this account was proved by defendant, ber from George A. Burr and W. O. Poole, who had a lien thereon for the purchase money of the timber out of which the lumber was manufactured, and asked to be subrogated to the rights of Burr and Poole. It also alleged that Burr and Poole warranted the title thereto and agreed to hold it harmless. It also alleged that George Booser was the real party in interest instead of J. R. Briney, and asked that Booser, Burr, and Poole be made parties defendant in its crossbill against them and Briney, in which it was alleged that said appellant sustained $5,000 damages on account of a failure to deliver the lumber to it.

In an action to recover upon a contract to manufacture and deliver different kinds of lumber at a price of $14 to $15 per thousand feet, held, not error for court to allow recovery of $15 per thousand for No. 3 lumber, where contract did not specify any price for this grade and the testimony as to the value of such grade was conflicting and such price was not contrary to clear preponderance of evidence.

6. Equity 204-Held not error to dismiss cross-bill, where no showing that party had interest in litigation.

It was not error to dismiss cross-bill against party not shown to have any interest in the litigation and who in his answer disclaimed in

terest therein.

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George A. Booser filed an answer denying any interest in the litigation.

George A. Burr and W. O. Poole filed an answer denying that they guaranteed a title to the lumber when they sold same to appellant, but asserted a right to sell same under a vendor's lien, retained by them in their timber deed of date September 19, 1918, to F. C. Mullinix as trustee in bankwhom said appellee, J. R. Briney, purchased ruptcy of George A. Booser, bankrupt, from the logs out of which the lumber in question was manufactured. They asked and obtained a transfer of the cause to the chancery court of the Western district of said county for the purpose of enforcing their alleged lien rights against the timber and lumber. The cause was submitted to the court upon

Appeal from Clay Chancery Court; Arch- the pleadings and testimony, which resulted er Wheatley, Chancellor.

Suit by J. R. Briney and others against the Henry Quellmalz Lumber & Manufacturing Company, in which defendant by cross-bill impleaded George A. Booser and others. From a decree dismissing defendant's crossbill and giving judgment for plaintiffs, defendant appeals. Affirmed.

C. T. Bloodworth, of Corning, for appel

lant.

F. G. Taylor, of Corning, and Fuhr & Futrell, of Paragould, for appellees.

HUMPHREYS, J. This suit

was com

in a dismissal of appellant's cross-bill, and a judgment against appellant in favor of appellee J. R. Briney in the sum of $839.43, with interest, from which is this appeal.

The record reveals that on the 19th day of September, 1918, George A. Burr, W. O. Poole, and his wife, Dora C. Poole, conveyed the timber on 1,566.42 acres of land in the

said county, to F. C. Mullinix, trustee in bankruptcy of George A. Booser, bankrupt, for $20,000, $1,000 cash, and the balance in deferred payments, evidenced by said trustee's certificates. The deed contains the usual granting, habendum, and warranty clauses appearing in deeds to real estate. It also contains the following clauses:

menced in the Western district of the Clay circuit court by appellee J. R. Briney against appellant to recover an alleged balance of "If default be made for a period of thirty $2,410.39 upon a written contract entered in- days in the payment of principal and interest, to on the 23d day of July, 1919, by and be- the entire remaining purchase money and intween appellant and appellee J. R. Briney, terest to become immediately due and payable, for the manufacture and delivery of differ- and at such time all cutting, removing and manent kinds of lumber on board cars at Tipper-ufacturing of the timber herein sold shall immediately cease. ary, Ark., at prices specified in the contract. "And in consideration of the foregoing grant Appellant filed an answer admitting the the said F. C. Mullinix, as trustee in bankexecution of the contract, but alleging ruptcy, agrees that he will pay every sixty days breaches thereof by said appellee, in failing for all timber removed by him from any lands,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

"Said W. O. Poole and George A. Burr retain a lien on all timber herein conveyed, except as herein provided, until said notes and interest be fully paid."

at the rate of two dollars per thousand feet | tured and stacked, to wit, in the month of for all soft wood, and five dollars per thousand March, 1920, Burr and Poole declared a forfeet for all hardwood, the amount of such pay- feiture because Mullinix defaulted in the ments to be credited on the notes first falling payment of the purchase-money certificates, due after payments. and served notice on all parties that they claimed a lien on all the timber including the lumber stacked on the mill yard. Thereupon appellant purchased the timber and lumber from Burr and Poole, and obtained a quitclaim deed thereto from them. Immediately after obtaining the deed, appellant took charge of the lumber, and inspected, sold, and shipped same to its customers.

we cannot say that the finding of the chancery court, to the effect that Briney did not breach the contract, is contrary to a clear preponderance of the evidence.

The timber deed was placed on record immediately after execution and delivery. F. C. Mullinix cut and removed a large amount of timber, and cut quite a little which he did not remove. The down timber was princi- [1] The testimony adduced by appellant pally in section 24. Mullinix sold the down tended to show that it gave appellee every timber in that section to J. R. Briney, who opportunity to haul and place the lumber manufactured about 362,000 feet of it into on board cars at Tipperary, and that he relumber. Briney produced his returned fused to do so and abandoned his contract. check for $886.06, payable to F. C. Mullinix, The testimony adduced by said appellee tendevidencing that he had paid the contracted to show that he requested appellant to stumpage price for the timber. George A. permit him to haul and place the lumber on Booser testified that he kept the books for board cars, and that appellant refused to let F. C. Mullinix, trustee, showing the amount him do so. We deem it unnecessary to set of all timber cut and all money paid by Mulli-out the testimony upon this issue. Suffice it nix to Burr and Poole under the timber to say that, after a careful reading thereof, deed. According to his testimony, which was undisputed, Mullinix cut 1,365,157 feet of soft wood, and 352,546 feet of hard wood, paying therefor the stumpage price of $2 per thousand for soft wood, and $5 per thousand for hard wood, or a total of $4,358.02, in addition to $1,000 cash paid by him when the contract was entered into. Prior to the time Burr and Poole declared a forfeiture for the nonpayment of the purchase money due by F. C. Mullinix, trustee, J. R. Briney purchased the down logs in said section 24. During the period of default on the part of Mullinix, and before the forfeiture was declared, J. R. Briney entered into a written contract with appellant which is made the basis of this suit, and manufactured 275,589 or more feet of lumber which was stacked on the millyard and marked by appellant's agent, upon which appellant advanced $544,39, and afterwards expended $1,237.36 in hauling and placing same on board cars at Tipperary. This contract provided, in subAppellee Briney made the contention that stance, for the cutting of not less than 200,- the clause quoted had no application to 000 and not more than 1,000,000 feet of lum- down timber which had been paid for acber of different kinds by Briney for appel-cording to the stumpage prices fixed in the lant, at fixed prices; that the lumber should deed. In support of this contention appellee be log run No. 2, common and better; that relies upon the following clause in said timthe lumber should average not more than ber deed: 20 per cent. No. 2; that said lumber should

Appellant contends that the chancery court erred in holding that it obtained title to the lumber in question from Burr and Poole through Mullinix and Briney. It is argued that because Mullinix made default in the payment of the purchase money he automatically forfeited all right to cut the standing timber and to sell or remove the down timber. In support of this argument, appellant relies upon the following clause in the timber deed of date September 19, 1918:

"If default be made for a period of thirty days in the payment of principal and interest, the entire remaining purchase money and interest to become immediately due and payable, and at such time all cutting, removing and manufacturing of the timber herein sold shall immediately cease."

"And in consideration of the foregoing grant be first stacked and dried at a sawmill on the said F. C. Mullinix, as trustee in bankruptthe land, and after inspection, hauled to cy, agrees that he will pay every sixty days for Tipperary and placed on board cars by all timber removed by him from any lands, at Briney at his expense, when directed to do the rate of two dollars per thousand feet for so by appellant; that advances should be all soft wood, and five dollars per thousand feet made to Briney every two weeks, as the lum- for all hard wood, the amount of such payments ber was being manufactured, at the rate of to be credited on the notes first falling due after payments." $14 or $15 per thousand, balance to be paid when loaded on cars; that appellant should [2, 3] Our interpretation of the evidence be allowed 2 per cent. discount on cash ad- makes it unnecessary to determine, under vanced. the terms of the contract, whether down timLong after the lumber had been manufac-ber which had been paid for according to the

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