Decker v. Laws

• Decision Date: 18 February 1905
• Citation: 85 S.W. 425
• Parties: DECKER et al. v. LAWS.
• Court: Arkansas Supreme Court

85 S.W. 425

DECKER et al. v. LAWS.

Supreme Court of Arkansas.

February 18, 1905.

Appeal from Circuit Court, Jackson County; Frederick D. Fulkerson, Judge.

Action by F. P. Laws against George W. Decker and another. From a judgment for plaintiff, defendants appeal. Affirmed.

F. P. Laws filed his complaint in the Jackson circuit court against the appellants, George W. Decker and George Goodrich, under their style of the Newport Sawmill Company, in which he alleged they were indebted to him in the sum of $936.98 by reason of having been engaged to sell their sawmill and plant, and further alleged that they had agreed to give him a commission of 10 per cent. on the amount of the sale, and that he effected a sale of said property at the sum of $9,369.80—and exhibited a writing purporting to be a contract for commission, which is hereafter copied. Goodrich and Decker filed separate answers, the substance of which is as follows: The employment was denied. It was alleged that Goodrich agreed to give Laws 10 per cent. commission on all he received from a sale of the property over and above what the property had cost, in the event that Laws furnished a man to buy it, and this agreement was confined to the interest Goodrich had in the property; that Decker would pay nothing by way of commissions; and that the writing was only intended to cover such an agreement, to wit, a commission of 10 per cent. on all the profits Goodrich made out of the sale. Goodrich further alleged that he had paid $50 to Laws in full settlement, and afterwards paid him $25 more, when he found Laws was dissatisfied, and took his receipt in full of all demands. He also filed a counterclaim denying same. Afterwards death of Laws was suggested, and cause revived in name of his executrix. At the July term of court, 1902, the case was submitted for trial to a jury, whose verdict was in favor of plaintiff for $866.96.

The motion for new trial is as follows: "(1) Because the court erred in excusing and discharging the juror C. C. Crook because said juror answered, in response to questions put to him on his voir dire, that he had an office in the Bank of Newport, of which the defendant Decker was president, and that he had had business transactions with said Decker, when said juror had said he knew nothing about the facts in the case, and had formed no opinion in the case, and was not related to any of the parties to the suit, which discharge of said juror caused the defendants to exhaust all of their challenges before the said jury was selected, to which action of the court exception was duly taken. (2) Because the court erred in giving the jury instruction number two (2) over the objection of the defendants. (2½) Because the court erred in giving the jury instruction number three (3) over the objections of the defendants. (3) Because the attorney, in his closing argument to the jury, repeatedly called their attention to the fact that the defendants were men of wealth, while the estate of the plaintiff was insolvent, when no evidence had been introduced to that effect, and none was competent, and which argument was highly prejudicial to these defendants. (4) Because the attorney for the plaintiff was guilty of further improper conduct in his closing argument to the jury, in saying and repeating that the defendants were men who would not pay their debts, and that they were hard to get money out of, regardless of their wealth, and other language to the same effect, which argument was not based on the evidence in the case, and was highly prejudicial to these defendants."

John W. & Jos. M. Stayton, for appellants. Gustave Jones, for appellee.

WOOD, J. (after stating the facts).

1. The fact that a juror is on friendly relations to either party does not render him incompetent. Lavender v. Hudgens, 32 Ark. 763. But since appellants were not entitled to have any particular juror, the erroneous rejection of the talesman was not prejudicial, in the absence of a showing that some biased or incompetent juror was thrust upon them. Vaughan v. State, 58 Ark. 353, 24 S. W. 885.

2. Two checks were introduced in evidence, as follows:

"Newport Sawmill Co. McRae Lumber and Merc. Co. No. 1065.

                    "Newport, Arkansas, April 14, 1899
                  "The Bank of Newport, Newport Arkansas
                Pay to the order of F. P. Laws Fifty dollars
                "$50.00                              $50.00
                

"In full of all demands.

                                 "Geo. Goodrich, Manager."
                

Indorsed by F. P. Laws. Stamped, "Paid 4-24, 1899."

                "No. 691.      Newport, Ark., June 19, 1899
                

"Bank of Newport, Newport, Arkansas: Pay to the order of F. P. Laws, Twenty and no-100 ($20.00)

                "($20.00)             Newport Sawmill Co
                  "Loan.              By. Geo. L. Goodrich
                                                "Manager."
                

Indorsed, "F. P. Laws."

"The receipt is as follows:

                             "Jusdonia, the _____, 1899.
                

"Received of Newport Sawmill Company.

"Twenty Five dollars in full of all demands to date.

                "($25.00)         [Signed] F. P. Laws."
                

In regard to these checks and receipt, the testimony of Laws tended to show that there was never any agreement between him and appellants to accept any sum for his commission, less than the amount agreed upon. His testimony tended to show that the words "In full of all demands" on the $50 check, and the word "Loan" on the $20 check, were not on the checks when he received them. And his testimony as to the receipt also tended to show that "he did not sign any receipt in full satisfaction" of his demands. On behalf of appellants, Goodrich testified in regard to the $50 check that he mailed same to Laws intending that it should go on account, and that he wrote Laws next day, telling him that, if there was any more when the matter was settled, he (Goodrich) would give it to him; that the check had not been changed; and that it had "In full of all demands" when sent to Laws. As to the $20 check, Goodrich testified that was for money which Laws borrowed of him at Corning; that he gave Laws the $20 check. As to the receipt, Goodrich testified that he "wrote the receipt exhibited in evidence, and that Laws signed it, and read it at the time he signed...