Feldman v. Fox

• Decision Date: 09 March 1914
• Citation: 164 S.W. 766
• Parties: FELDMAN v. FOX.
• Court: Arkansas Supreme Court

164 S.W. 766

FELDMAN v. FOX.

Supreme Court of Arkansas.

March 9, 1914.

Appeal from Circuit Court, Clay County; J. D. Black, Special Judge.

Action by Lee Fox against David Feldman. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

S. R. Simpson, of Paragould, for appellant. Lafayette Hunter, of Piggott, for appellee.

McCULLOCH, C. J.

Appellee sued appellant on account consisting of sundry items aggregating the sum of $947.46. On trial of the case before a jury, he was awarded the sum of $219.40 by the verdict. Appellant denied that he was indebted to appellee in any sum and presented a counterclaim for the sum of $44.55 against appellee.

The largest item in appellee's account is one for the sum of $300, and the chief controversy in the trial below concerned that item. Appellant owned a farm, and appellee was a share cropper thereon during the year 1911. According to the terms of his contract with appellant, he was to plant, cultivate, and gather the crop, receive one-half as his share; appellant to pay him for gathering one-half of the cotton crop at the rate of 50 cents per 100 pounds. During the early part of the crop-gathering season, appellee became dissatisfied and contemplated selling his interest in the crop to another person, when, according to his testimony, appellant proposed to him that if he would refrain from selling his interest and go ahead and gather the crop he (appellant) would "guarantee" him $300 for his interest and one-half of all profits realized. That constitutes the item of $300 in dispute. Appellant denied that he made any such agreement.

The court, over appellant's objection, gave the following instruction: "(4) If you find by a preponderance of the evidence that the contract was changed after the crop had matured, as is contended by plaintiff, and that any consideration moved from plaintiff to defendant for the changing of the contract, then, as to this item of $300 for the sale of his one-half interest in said crop, you will find for the plaintiff as to this item, to wit, $300. By the word `consideration' is meant anything which would be of value to the defendant, or of injury to the plaintiff in making the new contract, or changing the old contract, as is contended by plaintiff."

Appellant requested the court to instruct the jury that he was not liable upon the alleged agreement to pay the said sum of $300, but was only liable on the original contract. The court refused to so instruct the jury, and exceptions were duly saved.

We are of the opinion that, according to the undisputed evidence, there was no consideration for the alleged agreement concerning the payment of said sum of $300, and that the question of appellant's liability for that item should not have been submitted to the jury. Appellee's original agreement was to gather the crop, appellant to pay one-half of the cost of picking, and each to receive one-half of the proceeds of the crop. The effect of the new agreement was for appellant to indemnify appellee against depreciation of the value of the crop below the sum of $300 if appellee would perform his contract. The contract was not, strictly speaking, a contract for guaranty, as defined in the books, but was a contract of indemnity. However, it is controlled by the same principle...