{ "id": 1684896, "name": "Townsend v. Standard Industries, Inc.", "name_abbreviation": "Townsend v. Standard Industries, Inc.", "decision_date": "1962-12-17", "docket_number": "5-2854", "first_page": "951", "last_page": "957", "citations": [ { "type": "official", "cite": "235 Ark. 951" }, { "type": "parallel", "cite": "363 S.W.2d 535" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "117 Mo. App. 19", "category": "reporters:state", "reporter": "Mo. App.", "case_ids": [ 1533447 ], "opinion_index": 0, "case_paths": [ "/mo-app/117/0019-01" ] }, { "cite": "29 Am. Rep. 530", "category": "reporters:state_regional", "reporter": "Am. Rep.", "opinion_index": 0 }, { "cite": "93 Mich. 491", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1489306 ], "opinion_index": 0, "case_paths": [ "/mich/93/0491-01" ] }, { "cite": "90 Ark. 504", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513822 ], "opinion_index": 0, "case_paths": [ "/ark/90/0504-01" ] }, { "cite": "131 S. W. 460", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "96 Ark. 184", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1542035 ], "opinion_index": 0, "case_paths": [ "/ark/96/0184-01" ] }, { "cite": "196 S. W. 800", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "129 Ark. 354", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1580449 ], "opinion_index": 0, "case_paths": [ "/ark/129/0354-01" ] }, { "cite": "256 S. W. 70", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "161 Ark. 323", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1388503 ], "opinion_index": 0, "case_paths": [ "/ark/161/0323-01" ] }, { "cite": "109 S. W. 2d 662", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 1 }, { "cite": "194 Ark. 805", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724742 ], "opinion_index": 1, "case_paths": [ "/ark/194/0805-01" ] }, { "cite": "196 S. W. 800", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "129 Ark. 354", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1580449 ], "opinion_index": 1, "case_paths": [ "/ark/129/0354-01" ] } ], "analysis": { "cardinality": 581, "char_count": 11728, "ocr_confidence": 0.52, "pagerank": { "raw": 2.4576915246030825e-07, "percentile": 0.8051984884060808 }, "sha256": "a3def55ae3355d19851b38aa14046270fd0481683e4b1c49429fe10dfe0cc453", "simhash": "1:37f8e756206a3d82", "word_count": 2043 }, "last_updated": "2023-07-14T18:12:51.729415+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "McFaddin, Robinson & Johnson, JJ., dissent.", "Johnson, J., joins in this dissent." ], "parties": [ "Townsend v. Standard Industries, Inc." ], "opinions": [ { "text": "Neill Bohlinger, Associate Justice.\nTbis is an action brought by appellant, John Townsend, in the Benton County Circuit Court to recover damages to which he alleged he was entitled by reason of a breach of contract by the appellee, Standard Industries, Inc.\nThe appellant, in his complaint, pleaded an oral agreement under which he stated that the appellant and appellee had operated from December, 1960 until April, 1961. He alleged the agreement was that he would move his sawmill onto certain lands owned by the appellee and would drag or haul timber from appellee\u2019s land after the timber had been felled by the appellee, and saw the same to size and dimension as directed by the appellee and that from December, 1960 to April, 1961 he had so performed.\nThe complaint states further:\n\u201cAnd that on or about the 20th day of April, 1961, the parties signed a written contract embodying the terms and provisions of their agreement under which they had been performing and complying, since sometime during the month of December, 1960, and which said written contract was prepared by the defendant, Standard Industries, Inc., a copy of which, marked Exhibit \u201cA\u201d, is attached hereto and made a part hereof fully as though set out word for word herein. \u2019 \u2019\nIt is the contention of the appellant that under the agreement appellee was to cut all the timber on what is roughly designated as the appellees \u2019 land comprising approximately 800 acres of timber land and appellant was to haul it to his mill, cut it to specification and sell it to appellees for a certain price.\nThe appellant\u2019s complaint alleges that after a lapse of time he was notified that no more timber would be bought and that he then moved his mill from the farm and brought this action for damages in the amount of $8,565.49 which he alleges he sustained by reason of the appellees\u2019 breach of contract.\nThe plaintiff, in his complaint, set out an oral agreement under which the parties operated from December, 1960 until April, 1961, as stated supra, but then stated that they had signed a written contract embodying the terms and provisions of their agreement.\nThe writing which appears as Exhibit \u201c A \u201d and which was incorporated in the complaint as if set out word for word is as follows:\n\u201cI, John Townsend, agree to set my sawmill on Standard Industry Farm, Rt. 1, Rogers, Ark. I will pick up logs from the farm, haul them to mill & will cut lumber as desired for $4 per 100 board ft.\nI will cut, split & haul all white oak that will make Staves or heading for 2/3 amount received.\n/s/ John Townsend\nStandard Industries Farm\n/s/ Grover Fuller\nI, Grover Fuller, will check lumber each Saturday & move it from mill \u2014 and count Board feet\u2014\n/s/ Grover Fuller \u201d\nThe appellees [defendants below] filed a demurrer to the complaint on grounds it failed to allege facts which would constitute a cause of action, which the trial court sustained.\nFor the purpose of determining the sufficiency of the complaint on demurrer, the allegations contained in the pleadings must be taken as true. Moore v. North College Avenue Improvement Dist. No. 1 of Fayetteville, 161 Ark. 323, 256 S. W. 70. In the instant case it appears that the parties proceeded on the strength of some conversations in regard to the cutting of appellees\u2019 timber. In April, however, there was a writing signed by both the parties hereto and appellant\u2019s complaint sets forth the written document as \u201cembodying the terms and provisions of their agreement under which they had been performing and complying\u201d which document is \u201cattached hereto and made a part hereof fully as though set out word for word herein. \u2019 \u2019 Therefore, whatever had been discussed or contemplated by the parties is brought within the focus of a writing signed by the parties and the appellant has a cause of action only if this writing is a contract.\nThe rule that in law cases an exhibit will not be considered in determining the sufficiency of the complaint on demurrer is not applicable here because the alleged contract is made a part of the complaint \u2018 \u2018 as though set out word for word herein.\u201d Therefore, the terms of the writing are the very essence of the complaint and is the basis on which the action is predicated.\nThis is not a case in which parol evidence may be introduced to contradict or vary the terms of the written contract because from the allegations it purports to be a complete contract embodying all the terms and provisions of the agreement, and the rule as stated, in Graves v. Bodcaw Lumber Co., 129 Ark. 354, 196 S. W. 800 is that:\n\u201c* * * it is Hornbook law that all prior negotiations leading np to the written contract are merged therein, and, further, that evidence of contemporaneous parol agreement is not competent to vary the terms of the written agreement.\u201d [Citations omitted]\nThere is no allegation made that this is a severable contract so it must be considered as a whole.\nFrom the terms of the writing, this is not a contract for the sale of all the output of the mill, nor is it a contract for the sale of all the timber on a given tract of land. Nothing in the writing, into which all the agreements have been merged, provides how much timber is to be cut nor when it is to be cut. There is no agreement to provide any specific logs for Townsend to cut, hence there is no mutual agreement. The quantity of logs to be cut is neither expressed nor implied in the alleged contract and thus cannot be ascertained.\nThe most that can be said is that the parties had agreed on a plan of operation but they did not make a contract.\nAs was said in El Dorado Ice & Planing Mill Co. v. Kinard, 96 Ark. 184, 131 S. W. 460:\n\u201cA contract to be enforceable must impose mutual obligations on both of the parties thereto. The contract is based upon the mutual promises made by the parties; and if the promise made by either does not by its terms fix a real liability upon one party, then such promise does not form a consideration for the promise of the other party. As is said in the case of St. Louis, I. M. & S. Ry. Co. v. Clark, 90 Ark. 504, \u2018mutuality of contract means that an obligation must rest on each party to do or permit to be done something in consideration for the act or promise of the other; that is, neither party is bound unless both are bound. \u2019 A contract, therefore, which leaves it entirely optional with one of the parties as to whether or not he will perform his promise would not be binding on the other. Such are the contracts wherein one promises to buy all that the other may desire to sell; or wherein one promises to sell or deliver all that he may desire or choose to sell or deliver. Davie v. Lumberman\u2019s Mining Co., 93 Mich. 491; Cummer v. Butts, 29 Am. Rep. 530.\nAnd such, too, is the nature of the contracts wherein the quantity sold can not be made reasonable to appear or is incapable of an approximately accurate estimate. Campbell v. American Handle Co., 117 Mo. App. 19.\nBut a contract to sell and deliver to another all that one party may require in an established business, or all the product that the other party may produce for a definite period from a certain mill or plant, does impose such a fixed obligation as to save the mutual character of the promise. In such cases the quantity sold can be made to reasonably appear, and is capable of an approximately accurate estimate. And so a contract for the sale of the entire output of a mill of a known capacity for a definite period would be binding, although the amount so sold is not definitely ascertained.\u201d [Citations omitted]\nThe demurrer to the amended and substituted complaint was properly sustained and upon failure of the appellant to plead further the action was dismissed with prejudice. This action of the lower court is affirmed.\nMcFaddin, Robinson & Johnson, JJ., dissent.", "type": "majority", "author": "Neill Bohlinger, Associate Justice." }, { "text": "Sam Robinson, Associate Justice\n(dissenting). According to any reasonable construction of the complaint in this case it alleges that the plaintiff and defendant entered into an oral contract whereby, for a stipulated amount, the appellee employed appellant to saw into lumber all of the logs from 800 acres of timberland. The complaint further alleges that at a later date the oral agreement was reduced to a written contract; that appellant performed part of the contract and had stood ready, willing and able to complete his part of the contract if he had been permitted to do so by appellee, but that appellee had breached his part of the contract by failing to furnish the logs to be sawed into lumber.\nThe majority is holding that the writing does not constitute a contract, but that appellee is bound by the terms of this unenforceable agreement and can not introduce parol testimony to add to the writing to show that the parties actually did enter into a valid contract. In my opinion, the majority has improperly applied the parol evidence rule. Before this rule is applicable, there must be a valid written contract between the parties. The majority holds, and I agree, that there is no such contract.\nIn 20 Am. Jur. 954 it is said: \u201cThe rule, commonly known as the \u2018parol evidence rule,\u2019 which excludes evidence of prior or contemporaneous oral agreements which would vary a written contract presupposes the existence of an existing valid written contract. Speaking generally, if the parol evidence attacks the legality ... of the contract, it does not fall within the condemnation of the so-called \u2018parol evidence rule\u2019.\u201d (Emphasis ours.) And, on page 955 of the same volume of Am. Jur., it is said: \u201cThe rule that parol evidence is inadmissible to contradict or vary a written contract applies only to a written contract which is in force as a binding obligation.\u201d\nIn 32 C.J.S. 823 it is said: \u201cIt is of course necessary to the application of the parol evidence rule to contracts that there shall be a complete written contract between the parties.\u201d\n\u201cThe trial court assumed that such testimony was incompetent under the rule that parol testimony is not admissible to'vary the terms of a written contract. While this is the law, it does not necessarily apply here, for if appellant\u2019s construction of the transaction is correct, no contract was entered into.\u201d Marshall Motor Service v. Norm Co., 194 Ark. 805, 109 S. W. 2d 662. Likewise in the case at bar, if there is no written contract, there is nothing to prohibit proof of an oral contract.\nThe majority points out that there is no written contract between the parties, and then cites Graves v. Bodcaw Lumber Co., 129 Ark. 354, 196 S. W. 800, to the effect that parol evidence is not admissible to vary the terms of a valid and binding written contract. In that case there was a valid written contract; the Court said: \u201cThe writing sued on here showed a complete contract. \u2019 \u2019\nAppellant alleges in the complaint an oral agreement constituting a valid contract. Only recently, in the case of Donham, Commissioner v. Neeley, Law Reporter of November 12, this Court held that an entire complaint is not demurrable if any good cause of action is stated, and that in testing the sufficiency of a pleading against a general demurrer, every reasonable intendment should be indulged to support the pleading.\nIn my opinion the complaint in this cause states a valid oral contract. The parol evidence rule, which is actually a rule of substantive law because of rights acquired under a written contract, is not applicable because there is no valid written contract. I would, therefore, reverse the judgment.\nJohnson, J., joins in this dissent.", "type": "dissent", "author": "Sam Robinson, Associate Justice" } ], "attorneys": [ "J. Wesley Sampier and Jeff Duty, for appellant.", "Crouch, Blair & Cypert, for appellee." ], "corrections": "", "head_matter": "Townsend v. Standard Industries, Inc.\n5-2854\n363 S. W. 2d 535\nOpinion delivered December 17, 1962.\n[Rehearing denied February 4, 1963.]\nJ. Wesley Sampier and Jeff Duty, for appellant.\nCrouch, Blair & Cypert, for appellee." }, "file_name": "0951-01", "first_page_order": 977, "last_page_order": 983 }