Decker v. Laws

• Citation: 85 S.W. 425,74 Ark. 286
• Parties: DECKER v. LAWS
• Decision Date: 18 February 1905
• Court: Arkansas Supreme Court

85 S.W. 425

74 Ark. 286

DECKER v. LAWS

Supreme Court of Arkansas

February 18, 1905

Appeal from Jackson Circuit Court FREDERICK D. FULKERSON, Judge.

Affirmed.

STATEMENT BY THE COURT.

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 Saw Mill 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 he exhibited a writing purporting to be a contract for commissions.

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 commission, 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 counter-claim for the sum of $ 20, which he claimed Laws had borrowed from him. Laws filed a reply, 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 the 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 question 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 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 2 over the objection of the defendants.

(2 1/2.) Because the court erred in giving the jury instruction number 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.

Affirmed.

John W. & Joseph M. Stayton, for appellants.

If the court excluded the juror because he was appellants' friend, it was error. 32 Ark. 766. Instructions number 2 and 3 were misleading and conflicting. 2 Enc. 233; 27 Ark. 108; 6 Wash. 84; 48 Ohio 296; 82 Tex. 259; 108 Mo. 352; 30 Ark. 305; 81 Ia. 321.

Gustave Jones, for appellee.

OPINION

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.

No. 1065.

"McRae Lumber & Merc. Co.

"Newport, Arkansas, April 14, 1899.

"Bank of Newport, Newport, Arkansas:

"Pay to the order of F. P. Laws, Fifty Dollars

$ 50.00 $ 50.00

"In full of all demands.

"George Goodrich, Manager.

Stamped 'Paid 4-24-1899.'"

"Indorsed by F. P. Laws.

"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

"Loan.

"Newport Sawmill Co.

"By George L. Goodrich, Manager.

[Indorsed] "F. P. Laws."

The receipt is as follows:

"Judsonia, the 1899.

"Received of Newport Sawmill Company.

"Twenty-five dollars in full of all demands to date.

"($ 25.00)

F. P. Laws."

[Signed]

In regard to these checks and receipt the testimony of Laws tended to show that there was never any agreement between him and appellees 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 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 it 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 it. In the bill of exceptions is this statement: "The words 'in full of all demands' written in check for $ 50, of date April 14, 1899, appeared to the court to be written in a different hand, or in the same hand with a different pen, or at a different time from the other writing in the check. It was this fact that called forth the giving of instruction number 3."

The court gave instructions numbered 2 and 3, which are as follows:

"2. You are instructed that where the parties give a receipt or check bearing upon its face that the sum mentioned is in full payment of the account between the parties, the burden is upon such party signing such receipt or check to show that it was not intended as a full payment.

"3. The burden of proof is upon defendants in this case to show that the checks had the words 'in full of all demands' written thereon at the time the plaintiff accepted such checks; and if you find that such words were not written thereon at such time, you will disregard such words."

Instruction number 2 was applicable to the evidence on behalf...