(173 La. 691)

#### DAVIS et al. v. G. M. LOMAX LUMBER CO. et al.

No. 31118.

Supreme Court of Louisiana.

Nov. 30, 1931.

J. W. Elder and Scarborough & Barham, all of Ruston, for appellants.

Dhu Thompson, of Monroe, for appellees.

LAND, J.

In the month of February, 1925, the plaintiff, O. K. Davis, entered into a verbal contract with defendant, by the terms of which he was to haul the output of defendant’s saw mill from the plant to the railroad station at Vienna, Lincoln parish, La., and there load it upon cars of the Rock Island Railroad for shipment. Later on Davis assigned an interest in this contract to his coplaintiff, L. E. Graham.

After the contract had been in operation for a year and ten months, it was terminated by defendant on January 1, 1927. At that date it is alleged by plaintiffs that defendant had remaining for the cut of the mill ten million feet of timber to be sawed into lumber, and that the abrogation by defendant, of the contract with plaintiffs to haul this lumber, deprived plaintiffs of a profit of 35 cents per thousand, or the sum of $3,500 on the whole ten million feet of lumber to be hauled.

The suit of plaintiffs is predicated upon the contention that their contract with defendant was to continue during the life of the cut of defendant’s mill, and that plaintiffs were to haul all of the lumber purchased from defendant’s mill.

Defendant, on the other hand, avers that the contract made was verbal, and was not to continue for any specified time, and provided for its termination at the will of either party.

Judgment was rendered in the court below rejecting plaintiffs’ demand and dismissing their suit, and plaintiffs have appealed.

*511It Is clear that the terms of the verbal contract constitute the vital question involved in this case.

Defendant company is a commercial partnership domiciled and doing business in the parish of Lincoln, and is composed of Dallas Lomax and Burt Lomax.

At the time the verbal contract was entered into, there were present O. K. Davis, Dallas Lomax, Burt Lomax, and Pierce Lomax.

O. K. Davis testified, on the trial of the case, that the contract provided that he should haul the entire cut of the mill.

On the other hand, Dallas Lomax, Burt Lomax, and Pierce Lomax all testified that it was agreed and understood that the contract could be terminated whenever either of the contracting parties saw fit.

The testimony of Davis stands alone, and is wholly unsupported on the question of the terms of the contract.

On the other hand, the testimony of the three Lomaxes is corroborated by the testimony of McKeathen, one of plaintiffs’ witnesses. At the time the contract was made, McKeathen was an employee of defendant as mill foreman, and heard some of the negotiations between Dallas Lomax and O. K. Davis, who, after making the contract, assigned an interest therein to his coplaintiff, L. E. Graham.

The trial judge declares in his written opinion that the “contracting parties are gentlemen of probity and generally accepted truthfulness,” and concluded that, of the two conflicting statements as to the terms of the contract, the one made by defendant’s witnesses was to be accepted, as it was sustained by a fair preponderance of the evidence.

We find no error in the conclusion reached by the court below.

Judgment affirmed.