Miller v. Harvey

408 So. 2d 946
CourtLouisiana Court of Appeal
DecidedDecember 7, 1981
Docket14720
StatusPublished
Cited by16 cases

This text of 408 So. 2d 946 (Miller v. Harvey) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miller v. Harvey, 408 So. 2d 946 (La. Ct. App. 1981).

Opinion

408 So.2d 946 (1981)

Davie MILLER, Plaintiff-Appellee,
v.
William Penn HARVEY, et al., Defendants-Appellants.

No. 14720.

Court of Appeal of Louisiana, Second Circuit.

December 7, 1981.

*948 Fish, Montgomery & Robinson by Roy M. Fish, Springhill, for plaintiff-appellee.

C. Sherburne Sentell, Minden, for defendants-appellants.

Before PRICE, HALL and JASPER E. JONES, JJ.

JASPER E. JONES, Judge.

The defendant, William Penn Harvey, appeals a judgment against him on the main demand, based on contract, and on a reconventional demand to his third party demand, based on tort, and which rejected all of his demands on his third party action. This litigation resulted from the sequence of events described below.

W. W. Rice, owner of a crosstie mill, contracted with the defendant to operate the mill upon defendant's property and agreed to pay defendant $10.00 per week for the use of the property. The contract contained the following provision:

"W. W. Rice further agrees to hold harmless Penn Harvey and indemnify him should he be sued or held liable for any damages to any person or their property as a result of the said crosstie operation, and he likewise agrees to indemnify Penn Harvey should any creditor of W. W. Rice take any action against Penn Harvey or his land as a result of a crosstie operation being on Mr. Harvey's land. Mr. Rice further states that should Penn Harvey be brought into any litigation as a result of the operations of Mr. Rice on his property, or from the breach of any covenant herein, that Mr. Rice shall pay any court costs and attorney's fees incurred by Penn Harvey as a result of being drawn into any such litigation or from any breach of this agreement."

The mill was assembled on the Harvey place and operated there about two years pursuant to the contract between Rice and Harvey.

In the summer of 1979 Harvey was logging pine from two tracts and Rice asked him to see if he could buy the hardwood from those tracts to be cut into crossties. Harvey purchased the hardwood on the tracts from the landowners for the price of $1.00 per tie. Harvey was to be paid a total of $4.50 per tie by Rice from which Harvey was to pay the landowners for the timber.

Harvey cut the hardwood but was unable to get it hauled to the mill. Disagreement about the situation arose between Harvey and Rice and the latter decided to move his mill to another site. When Harvey realized the mill was being moved he locked the gate which provided access to the mill, thereby preventing Rice from moving it.

Rice planned to use legal proceedings to free his mill but before any steps were taken in that direction Harvey was approached by Davie Miller, the plaintiff. Miller was a distant relative of Rice's and from time to time worked with him in his timber business. Miller had helped Rice to move part of the mill before Harvey locked them out.

Miller asked Harvey what he would require to unlock the gate so the remainder of the mill could be moved. Harvey stated that he would unlock the gate only if he was paid for his logs. Miller and Harvey then entered into an agreement by the terms of which Miller bought the logs from Harvey. Their versions of the agreement differ. According to Miller he bought the logs from Harvey for $4.50 per tie cut from *949 them with an initial payment of $4,000 to be supplemented or reduced depending on how many ties the logs yielded. Harvey claims the price was $6,000 with an initial payment of $4,000 and the balance to be paid after Miller had sold the ties. Harvey contended that the price for the logs was firmly fixed at $6,000 and was subject to no adjustment regardless of the number of ties that were produced from the logs.

The logs did not produce the expected number of ties and Miller brought this action to recover a portion of his $4,000 advance on the purchase price of the logs. Harvey reconvened for the $2,000 balance he claimed as due on the sales price, and made a third party demand against Rice for any amount Harvey was held liable to Miller and for his attorney's fees and court costs under the indemnity provisions of the Harvey-Rice contract. Rice reconvened against Harvey for damages for the holding of the mill by locking the gate. There was judgment in favor of Miller and Rice on their claims and all of Harvey's demands were rejected. Harvey appealed. We affirm.

Harvey urges six assignments of error. First, that the trial court erred in finding that Miller had proved the oral contract as required by LSA-C.C. art. 2277. Second, that the trial court erred by substituting its deductions for the factual evidence required to prove the oral contract. Third, that the trial court erred by failing to apply the indemnity provisions of the contract between he and Rice. Fourth, that the trial court erred in finding that Rice had been denied access to the mill and awarding him damages for the holding of the mill. Fifth, that the trial court erred in finding that only 682 ties had been cut from the logs. Sixth, that it was error to find that the oral contract was between Miller and Harvey and that Miller had not been acting for Rice.

ASSIGNMENTS # 1, 2 and 6

Each of these assignments address the log purchase contract between Miller and Harvey; therefore, we will consider them together. The first two assignments go to the proof of the oral contract between Miller and Harvey.

An oral contract for an amount in excess of $500 must be proved by one credible witness and other corroborating circumstances. LSA-C.C. art. 2277.[1] The plaintiff can be the credible witness and the corroborating circumstances need only be general in nature. Ory v. Griffin, 162 So.2d 97 (La.App. 1st Cir. 1964); Foshee v. HandEni's Realty Co., 237 So.2d 437 (La.App. 3d Cir. 1970). A trial court's finding of corroboration is entitled to great weight. Samuels v. Firestone Tire & Rubber Co., 342 So.2d 661 (La.1977).

Mr. Miller testified that he bought the logs on a per tie basis and that his initial $4,000 payment was to be supplemented or reduced based on the number of ties produced. The trial judge who saw and heard Miller testify found him a credible witness and we find no error in that conclusion.

Included among the corroborating circumstances found by the trial judge were Harvey's prior contracts for the sale of logs had been on a per tie basis and in his answer, reconventional demand and third party demand, Harvey alleged he was to have been notified when the logs were cut up so that he could ascertain the number of crossties they produced. The fact that Harvey's past sales had been on a per tie basis tends to corroborate Miller's version of the contract. Further, Harvey's allegations that he was to have the opportunity to determine how many ties were cut also corroborates Miller's testimony that the agreement was on a per tie basis. The trial judge was correct in considering this a corroborating fact since Harvey was bound by that allegation. J. H. Jenkins Contractors, *950 Inc. v. Farriel, 261 La. 374, 259 So.2d 882 (1972). Both these facts strongly corroborate Miller's version of the oral contract. We conclude that Miller's testimony is sufficiently corroborated by these circumstances and the contract was proved in compliance with LSA-C.C. art. 2277. The corroboration is factual and not merely the conclusions of the trial judge as contended by appellant.

The sixth assignment of error is addressed to the finding that the log purchase contract was between Miller and Harvey and that Miller was not acting for Rice.

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Bluebook (online)
408 So. 2d 946, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-harvey-lactapp-1981.