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paper the Memphis market where blue stained | duty, as stated in Wynne v. Schnabaum, su-
cotton 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
80 hold my cotton for better price. Now, I
would love to send you check to cover ali i in making the first sale appellee should have
owe you but I am not able, and I am expecting acquiesced therein, holding appellant ac-
the cotton to pay itself out of debt."

countable for the difference between the sale

price and the guaranteed price, and if, unAppellee explained this letter by saying der the circumstances stated, appellee failed that what he meant was that he would have to do so, he released appellant from the been glad to have returned the advance and obligation of the guaranty. have taken possession of his cotton, but he [5] This is true because it is a well-settled was not able to return the advance, and he principle of the law of guaranty that a mawas not, therefore, in position to demand terial alteration in the obligation assumed, that appellant surrender the cotton to be sold made without the assent of the guarantor, by some other cotton factor. The letter ad discharges him, and it would have been an mits the amount advanced; but this was not alteration of the contract to deprive appelin dispute.

lant of the right to sell the cotton. See sec[2] The letter was not, however, a part of tion 35 of the article on Guaranty in 12 R. C. the contract; but was merely evidentiary of L. p. 1083, and the numerous cases cited in it, and its interpretation was, therefore, for the text. J. R. Watkins Medical Co. v. Montthe jury in connection with appellee's expla- gomery, 140 Ark. 487, 215 S. W. 638; Snodnation of it. The rule in such cases is stated grass v. Shader, 113 Ark. 429, 168 S. W. 567, by Mr. Thompson as follows:

and numerous cases therein cited. "Where a writing thus put in evidence is not We think there was no testimony to wara dispositive instrument, but is merely offered rant the submission of the question of neg. for the purpose of showing an extrinsic fact, ligence on the part of appellant in selling the it will be for the jury to say what inference of cotton. It appears from the undisputed tesfact is to be drawn from it.” Thompson on timony now before us that upon the receipt Trials, vol. 1, § 1098, and cases cited; Barker of the cotton in Memphis, it was stored in the v. Lewis Pub. Co., 152 Mo. App. 706, 131 S. warehouse of the Memphis Terminal ComW. 929.

pany. This is a large cotton warehouse de [3] It appears, however, that, even though signed for the storage of cotton, used by apthe testimony is legally sufficient to support pellant and a number of other cotton faca finding that there was a guaranty on ap tors for that purpose. Upon placing the cotpellant's part as to the price for which the ton in the warehouse, a sample of each bale cotton would be sold, appellee could not hold was obtained and rolled in a piece of paper, appellant liable as a guarantor unless appel- upon which the marks and number of the lant had authority to sell in good faith, at bale from which it was taken were written. the best price obtainable. The rights and The warehouse number was also piaced duties of a factor in regard to the sale of thereon to enable the warehouse company to cotton consigned for that purpose are fully identify it, and under that number the shipdiscussed by Judge Battle in the case of per's mark and number were also placed. Wynne v. Schnabaum, 78 Ark. 402, 94 s. W. After that the sample thus wrapped was 50; the appellant there being the appellant placed on the sample table, in the salesroom, here. And when we speak of the rights and and each bale was sold on its merits by those duties of a factor we mean as there defined, samples. Buyers were shown these samples and they need not be restated here.

and sales were made from them when posIt is obvious that appellee seeks to hold sible. appellant liable as occupying the dual rela Wynne testified and there is no contration towards him of factor and guarantor, diction of his testimony—that there was but and, this being true, appellee would have little demand for cotton from and after the had no right to speculate at appellant's ex- time of the receipt of appellee's cotton, and pense by holding the cotton for a higher the prevailing quotations could not be obprice than the sum advanced if appellant be tained because of the lack of demand. This lieved the price would.not go higher, and that lack of demand was accentuated by the the best price obtainable had been offered. constant decline in price, and the first sale If appellant, acting with due diligence, in made, on May 18th, was the most advangood faith, and with the ordinary discretion tageous one that could have been made under required of a factor, believed, at the time all the circumstances. The cotton was finalthe first sale was made, that the best ob- ly sold on January 30th thereafter, or at tainable price had been offered, then it had still later dates, for the following prices: the right to accept that price and account to Two bales for 16 cents; four bales for 11 appellee for the difference between that price cents; two bales for 10 cents; one bale for and the guaranteed price.

15 cents; one bale for 16 cents; two bales

(248 S.W.) The fact that there was a guaranty did | 2. Attachment 366_Malicious prosecution not alone deprive the appellant of the right Om67-Damages for Injury to credit recov. to sell below the guaranteed price, and ap erable in separate action. pellee had no right to impose an arbitrary

Damages arising from malicious prosecuprice and thereby deprive appellant of the tion of an attachment or on account of injury right to make an advantageous sale. Ap- to credit or loss of prospective profits are not pellee was afforded the opportunity to repay solution of the attachment, but must be re.

recoverable in the attachment suit on the disthe advances and retake the cotton, and de- covered, if at all, in a separate action. clined to do so. Refusing to do this, he had no right to arbitrarily fix the price he would 3. Malicious prosecution om 66–Measure of accept for the cotton and continue to hold

damages for detention of attached property

stated. appellant liable under the guaranty. 2

The measure of damages for the wrongful Mechem on Agency (20 Ed.) § 2527.

detention or loss of attached property is the Wynne was asked if he had made any spe- usable value of the property during detention cial effort to sell this cotton, and he an

or the market value at the time of its loss. swered that the same effort was made to sell

4. Malicious all the cotton consigned to his company.

prosecution m'49Complaint

must allege want of probable cause. Appellee insists that this was negligence, as special effort should have been made to sell does not show that the suit or a writ of at

Complaint for malicious prosecution which the cotton in view of the declining market. tachment complained of was issued without We do not think so. As a factor appellant probable cause does not state facts sufficient owed the same duty to all consignors, and to constitute a cause of action. had no right to make any concession at the expense of some other consignor in order to

Appeal from Circuit Court, Lawrence Counsell appellee's cotton, and the testimony shows ty; Dene H. Coleman, Judge. that equal and customary attention was giyen to the sale of all the cotton.

Action by E. Sonsee against Jones & Green

From a judgment for defendWe conclude, therefore, that if appellee de- and others. sired to rely on appellant's guaranty, he ants, plaintiff appeals. Affirmed. should have done so. He had the right to do E. F. Duncan, of Newport, for appellant. 80. He could have accepted the proceeds of Smith & Gibson, of Walnut Ridge, for the first sale and have required appellant to appellees. account to him for the difference between these proceeds and the guaranteed price,

MCCULLOCH, C. J. This is an action to thereby extinguishing his debt for the ad

recover damages alleged to have been susFances. But he had no right to enlarge the

tained on account of the wrongful issuance guaranty by depriving appellant of its right and levy of a writ of attachment. It is to sell

, if that right was exercised by appel- against Jones & Green, a copartnership, lant in good faith; and we find no testimony which was the plaintiff in the original action, to the contrary. The undisputed proof shows that the best price was received which could and against the constable who levied the at

tachment, and the sureties on his official have been obtained, and it is not shown that

bond. the second sale was not made at the best

It was alleged in the complaint that the price then obtainable. The loss resulted from a collapse in the plaintiff was a resident of Lawrence county,

Ark., and was the owner of four horses, a price of cotton, for which the appellant was not responsible, and the judgment of the wagon and harness, and some household court below must therefore be reversed, and goods, all of the value of $185, and that,

while he was removing from Lawrence counjudgment rendered here for the sum sued

ty to Jackson county for the purpose of for.

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 SONSEE V. JONES & GREEN et al. aforedescribed property of the plaintiff. He (No. 152.)

alleged in his complaint that his said prop(Supreme Court of Arkansas. Feb. 12, 1923. erty was seized by the constable, and that he Rehearing Denied March 12, 1923.)

was arrested under the writ, that he and

his property were taken into custody, and 1. Attachment Ew366–Malicious prosecution that the property was sold to pay the debt F267–Compensatory damages for wrong. of Jones & Green, plaintiff in that action. ful attachment recoverable only in action

It was further stated in the complaint

thatCompensatory damages arising from the loss of or injury to attached property are re-“by reason of the taking of this property, ag coferable only in the action in which the at. aforesaid, the plaintiff was rendered unable fachment was dissolved.

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

to dissolve.

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."

HENRY QUELLMALZ LUMBER & MFG. CO. The court sustained a demurrer to that

V. BRINEY et al. (No. 195.) part of the complaint which claimed com- (Supreme Court of Arkansas. Feb. 26, 1923.) pensatory damages.

The defendant answered, and, among other 1. Sales Cw181(11)-Finding that contract not things, pleaded as a former adjudication of broken held not contrary to clear preponderthe issues involved the judgment of the cir

ance of evidence. cuit court of Lawrence county, on appeal Firding that plaintiff had not broken confrom the justice of the peace, dissolving the tract to manufacture and deliver different kinds attachment in the case of Jones & Green of lumber on board cars at specified prices held against the plaintiff in this action, and or

not contrary to a clear preponderance of the

evidence. dering the return of the proceeds of the attached property to the plaintiff. On the trial | 2. Logs and logging Om 3(13)–Conduct of venof the issue the court sustained the plea of

dors in failing to declare forfeiture held to res adjudicata, and judgment was accord

estop vendors from asserting a lien upon logs

manufactured into lumber by purchaser from ingly ‘rendered against the plaintiff.

vendee. [1] The court was correct in sustaining

Where vendors conveyed timber rights rethe demurrer. Compensatory damages aris- taining a vendor's lien, and deed provided that ing from the loss of, or injury to, the at- upon default in making payments on purchase tached property were recoverable only in the price all cutting and removing of timber should original action in which the attachment was cease, vendee to pay for logs cut and removed dissolved. Davidson v. Mayhue, 120 Ark. at specified rates, and vendee sold cut timber 344, 179 S. W. 371.

to plaintiff, who contracted to manufacture it [2] Damages arising from malicious prose- into lumber and deliver it on cars for defendcution or on account of injury to credit and ants, and thereafter vendee defaulted in payloss of prospective profits were not recover, dors, and vendors made continuous efforts to

ments, but no forfeiture was declared by venable in the original action, and must be re- collect payments thereon and permitted plaincovered, if at all, in a separate action. Hol- tiff to manufacture the cut logs, vendors were liday Bros. v. Cohen, 34 Ark. 707; Goodbar | thereby estopped from asserting a lien upon v. Lindsley, 51 Ark. 380, 11 S. W. 577, 14 such logs for which they had been paid stumpAm. St. Rep. 54.

age price, even though the cut timber had not [3] The loss of profits set forth in the com- been released from the vendor's lien. plaint was too remote to be recovered, as the 3. Logs and logging 3(13)-Where vendor of measure of damages for the detention or timber is estopped from asserting lien against loss of the attached property was the usable purchaser of lumber from vendee, purchaser value of the property during detention or derives right to possession of lumber manuthe market value at the time of its loss.

factured out of such timber from vendee, and

not from quitclaim deed from vendor. [4] The complaint does not state facts sufficient to constitute a cause of action for ma

Where vendors conveyed timber rights relicious prosecution, as it does not show that default in making payments on purchase price

taining a vendor's lien, and deed provided upon the suit was instituted, or that the writ of all cutting and removing of timber should cease, attachment was issued, without probable but upon default no forfeiture was declared, cause. It is unnecessary to determine wheth- and vendors made continuous efforts to collect er or not the allegations were sufficient to payments thereon and permitted plaintiffs, who constitute a cause of action for false im- bad purchased cut timber from vendee, to manprisonment, since there was a trial of that ufacture it into lumber upon contract for deissue so far as it related to the recovery of fendant, and vendors being thereby estopped punitive damages, and there was no proof fendant had the right to possession of the lum

from asserting a lien against plaintiff, held, deadduced tending to show that the plaintiff ber upon which it had made advances to plainwas arrested and taken into custody. The tiff, and hence it was unnecessary for defendant testimony is directed only to the fact that to get quitclaim deed from vendor to get poshis property was seized and taken away from session of the lumber. him under the writ.

4. Sales Om417-Where no damage proved, On the trial of the cause the court found

held not error to allow no deduction for de. that the plaintiff was barred by the judg livery of more than 20 per cent. of No. 2 ment in the original action from recovering lumber contrary to contract. compensatory damages in a separate action, In an action to recover upon a contract to and this was correct. As there was no manufacture and deliver different kinds of lum

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(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 perior title to that of appellee to said lumlumber delivered, held, not error where no dainage on this account was proved by defendant, ber from George A. Burr and W. 0. Poole,

who had a lien thereon for the purchase 5. Sales Cw359(2)—Price of lumber allowed money of the timber out of which the lumby court held not against clear preponderance ber was manufactured, and asked to be subof evidence, where evidence of value conflict. ing.

rogated to the rights of Burr and Poole. It In an action to recover upon a contract also alleged that Burr and Poole warranted to manufacture and deliver different kinds of the title thereto and agreed to hold it harmlumber at a price of $14 to $15 per thousand less. It also alleged that George Booser was feet, held, not error for court to allow recovery the real party in interest instead of J. R. of $15 per thousand for No. 3 lumber, where Briney, and asked that Booser, Burr, and contract did not specify any price for this grade Poole be made parties defendant in its crossand the testimony as to the value of such grade bill against them and Briney, in which it was was conflicting and such price was not contrary alleged that said appellant sustained $5,000 to clear preponderance of evidence.

damages on account of a failure to deliver 6. Equity F 204 Held not error to dismiss the lumber to it. cross-bill, where no showing that party had George A. Booser filed an answer denying interest in litigation,

any interest in the litigation, It was not error to dismiss cross-bill against

George A. Burr and W. 0. Poole filed an party not shown to have any interest in the

answer denying that they guaranteed a title litigation and who in his answer disclaimed in

to the lumber when they sold same to apterest therein.

pellant, but asserted a right to sell same 7. Equity em 195Cross-bill to make vendor | under a vendor's lien, retained by them in party upon his covenant to defend held prop their timber deed of date September 19, erly denied, where expense of suit was not in 1918, to F. C. Mullinix as trustee in bankissue. A cross-bill to make a vendor in a quitclaim whom said appellee, J. R. Briney, purchased

ruptcy of George A. Booser, bankrupt, from timber deed a party to a suit was properly dismissed, although the quitclaim deed prorided the logs out of which the lumber in question that vendor would defend all suits brought by was manufactured. They asked and obtainthe trustee in bankruptcy of the original owner ed a transfer of the cause to the chancery of the land or his assignees for purpose of de- court of the Western district of said county feating title to timber conveyed; the expense for the purpose of enforcing their alleged of the suit not being an issue in the case. 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.

in a dismissal of appellant's cross-bill, and Suit by J. R. Briney and others against the a judgment against appellant in favor of Henry Quellmalz Lumber & Manufacturing appellee J. R. Briney in the sum of $839.43, Company, in which defendant by cross-bill with interest, from which is this appeal. impleaded George A. Booser and others. The record reveals that on the 19th day of From a decree dismissing defendant's cross- September, 1918, George A. Burr, W. 0. bill and giving judgment for plaintiffs, de- Poole, and his wife, Dora C. Poole, conveyed fendant appeals. Affirmed.

the timber on 1,566.42 acres of land in the C. T. Bloodworth, of Corning, for appel- said county, to F. C. Mullinix, trustee in lant.

bankruptcy of George A. Booser, bankrupt, F. G. Taylor, of Corning, and Fuhr & for $20,000, $1,000 cash, and the balance in Futrell, of Paragould, for appellees.

deferred payments, evidenced by said trus

tee's certificates. The deed contains the HUMPHREYS. J. This suit

usual granting, habendum, and warranty menced in the Western district of the Clay clauses appearing in deeds to real estate. It circuit court by appellee J. R. Briney against also contains the following clauses: 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 im

mediately 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,

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

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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 "Said W. 0. Poole and George A. Burr retain a lien on all timber herein conveyed, ex claimed a lien on all the timber including the cept as herein provided, until said notes and in. lumber stacked on the mill yard. Thereupon terest be fully paid."

appellant purchased the timber and lumber

from Burr and Poole, and obtained a quitThe timber deed was placed on record im- claim deed thereto from them. Immediately mediately after execution and delivery. F. after obtaining the deed, appellant took C. Mullinix cut and removed a large amount charge of the lumber, and inspected, sold, of timber, and cut quite a little which he did and shipped same to its customers. 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. Mullinis, 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 we cannot say that the finding of the chanwas undisputed, Mullinix cut 1,365,157 feet cery court, to the effect that Briney did not of soft wood, and 352,546 feet of hard wood, breach the contract, is contrary to a clear paying therefor the stumpage price of $2 per preponderance of the evidence. thousand for soft wood, and $5 per thousand Appellant contends that the chancery for hard wood, or a total of $4,358.02, in ad court erred in holding that it obtained title dition to $1,000 cash paid by him when the to the lumber in question from Burr and contract was entered into. Prior to the time Poole through Mullinix and Briney. It is Burr and Poole declared a forfeiture for the argued that because Mullinix made default nonpayment of the purchase money due by in the payment of the purchase money he F. C. Mullinix, trustee, J. R. Briney pur- automatically forfeited all right to cut the chased the down logs in said section 24. standing timber and to sell or remove the During the period of default on the part of down timber. In support of this argument, Mullinis, and before the forfeiture was de- appellant relies upon the following clause in clared, J. R. Briney entered into a written the timber deed of date September 19, 1918: contract with appellant which is made the

"If default be made for a period of thirty basis of this suit, and manufactured 275,589 days in the payment of principal and interest, or more feet of lumber which was stacked the entire remaining purchase money and inon the millyard and marked by appellant's terest to become immediately due and payable, agent, upon which appellant advanced $544,- and at such time all cutting, removing and 39, and afterwards expended $1,237.36 in manufacturing of the timber herein sold shall hauling and placing same on board cars at

immediately cease." Tipperary. This contract provided, in sub Appellee Briney made the contention that stance, for the cutting of not less than 200,- the cause 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

"And in consideration of the foregoing grant be first stacked and dried at a sawmill on the said F. C. Mullipix, 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 aft$14 or $15 per thousand, balance to be paid

er payments.” 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 tim

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