Bovay v. McGahhey
| Decision Date | 29 March 1920 |
| Docket Number | 289 |
| Parties | BOVAY v. MCGAHHEY |
| Court | Arkansas Supreme Court |
Appeal from Arkansas Circuit Court; W. B. Sorrells, Judge; reversed.
STATEMENT OF FACTS.
A. C McGahhey sued Harry E. Bovay to recover the sum of $ 600 claimed to be due him for commissions on the sale of a farm. The parties to the suit were the principal witnesses in the case, and both resided at Stuttgart, Arkansas.
According to the testimony of A. C. McGahhey, he met Harry E. Bovay on the streets of Stuttgart, in February, 1918. McGahhey had a deal with a Mr. Broussard for the sale of a tract of land to him. He told Bovay that he had a party who wanted to buy some rice land, and that if Bovay would furnish the land he would furnish the purchaser and they would divide the profits. Bovay agreed to this. A little later Bovay again met McGahhey on the street and told him he thought he could arrange to get the Morehead farm west of Stuttgart. They thought they could get the place for about $ 75 per acre, and that they could sell it to Broussard. That afternoon McGahhey and Broussard examined the place, and Broussard seemed very well pleased with it. McGahhey reported to Bovay that he had shown Broussard the Morehead farm, and that he thought Broussard was interested. Later McGahhey carried Broussard to Bovay's office and left them there talking about the farm. A little later McGahhey found out that Broussard had bought another farm containing 160 acres from Bovay. He asked Bovay about it. Bovay said that he had been unable to get the Morehead farm and had sold Broussard another farm which he owned. McGahhey told Bovay that he expected a 5 per cent commission, and Bovay said that he did not owe McGahhey any commission. McGahhey threatened to sue Bovay for a commission, and Bovay at first said that rather than pay McGahhey a commission that he would not make the deal with Broussard. McGahhey told him to go ahead and make the deal with Broussard, but declined to release him from his claim for a commission. Bovay paid $ 8,000 for the farm and sold it to Broussard on a credit for $ 12,000.
According to the testimony of H. E. Bovay, he did not owe McGahhey any commission. He talked with McGahhey about the Morehead farm and told him that if he purchased the farm he would consider selling it to Broussard and dividing the commission with McGahhey. He said that he had known for some time that Broussard wanted to buy a farm before McGahhey told him of that fact. He said that he never had any conversation with McGahhey except with regard to selling the Morehead farm to Broussard. Before he made the sale to Broussard, Bovay told McGahhey that he would not make the sale if the latter was going to claim any commission. McGahhey replied that he would not claim any commission, and, relying on this statement Bovay completed his contract with Broussard for the sale of the tract of land. He took in part pay a house and lot in Stuttgart valued at $ 2,500 on which there was a mortgage for $ 1,000 which Bovay paid. Broussard kept possession of the farm for about two years without making any further payments on it and a foreclosure suit will be necessary to get the balance of the purchase price.
The jury returned a verdict in favor of the plaintiff in the sum of $ 600, and from the judgment rendered the defendant has appealed.
Judgment reversed and cause remanded.
Kinsworthy Henderson & Kinsworthy, for appellant.
1. The court erred in refusing the first instruction asked by defendant, as there was no evidence to sustain it or the verdict.
2. The court erred in the instruction given on its own motion and in refusing defendant's Nos. 6 and 7. 93 Ark. 564; 94 Id. 293; 131 Id. 124; 95 Id. 108. See also 95 Id. 506-509-10; 55 Id. 393; 57 Id. 203; 98 Id. 17. The instructions ignored defendant's theory entirely. 107 Id. 130; 16 Id. 308; 98 Id. 347; Ib. 17.
W. A. Leach, for appellee.
1. The verdict is supported by the evidence. The jury were fully warranted in finding that appellant made a profit of at least $ 1,200 on the transaction, and on appeal this court will consider the testimony in its aspect most favorable to the appellee. 97 Ark. 486; 87 Id. 109; 97 Id. 438.
2. There was no error in refusing appellant's instructions, as they were predicated upon the wrong theory. Appellee funished the buyer as agreed upon and appellant was to furnish the farm; this was the only issue and the theory on which the case was tried, and it was presented under instructions as favorable to appellant as he had a right to ask, and he can not now be heard on a different issue on appeal. All questions of fact were determined by the jury against appellant, and the finding is based on substantial testimony and should be conclusive here.
OPINIONHART, J. (after stating the facts).
The court instructed the jury that if it should find from the evidence that there was an agreement between plaintiff and defe...
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