First National Bank of Newark v. People's National Bank of Springfield

• Decision Date: 12 December 1910
• Citation: 132 S.W. 1008,97 Ark. 15
• Parties: FIRST NATIONAL BANK OF NEWARK v. PEOPLE'S NATIONAL BANK OF SPRINGFIELD
• Court: Arkansas Supreme Court

132 S.W. 1008

97 Ark. 15

FIRST NATIONAL BANK OF NEWARK v. PEOPLE'S NATIONAL BANK OF SPRINGFIELD

Supreme Court of Arkansas

December 12, 1910

Appeal from Independence Circuit Court; Charles Coffin, Judge reversed.

Judgment reversed.

Samuel M. Casey, for appellant.

Ernest Neill, for appellee.

HART J. KIRBY, J., dissents.

OPINION

HART J.

Appellant is a corporation engaged in the banking business at Newark, Ark., and appellee is a corporation engaged in a similar business at Springfield, Tenn. A. L. Dorsey, agent and attorney for appellee, came to the State of Arkansas to locate one L. R. Phillips, a dealer in live poultry, and to collect from him an amount of money due appellee. He located Phillips at Mt. Grove, Mo., and also learned that Ira Arbuckle was buying poultry for him at Newark, Ark. He learned from Phillips that he had some poultry at Newark which Arbuckle had bought for him, and from Arbuckle that appellant had advanced some money on it, and would not let the poultry be shipped until its overdraft was paid. Dorsey sent to appellant the following telegram:

"Mt. Grove, Mo., July 17, 1908.

"First National Bank, Newark, Ark.:

"See Arbuckle and wire me amount of Phillips overdraft and pounds poultry for car, pounds paid for and not paid for, and how much money needed.

"A. L. Dorsey."

In reply he received the following telegram:

"Newark, Ark., July 17, 1908.

"A. L. Dorsey, Mt. Grove, Mo.:

"Three thousand pounds paid for, and seven thousand pounds for car and overdrawn $ 350; $ 400 needed.

"First National Bank, 8:27 A. M. 7-18."

He again telegraphed the appellant as follows:

"West Plains, Mo., July 18, 1908.

"First National Bank, Newark, Ark.:

"Wire me here at once if four hundred will take care overdraft and leave seven thousand paid for.

"A. L. Dorsey."

To this he received the following reply:

"Newark, Ark.

"A. L. Dorsey, Mt. Grove:

"Four hundred dollars will take care of overdraft and leave seven thousand pounds paid for; must be fixed this P. M.

"First National Bank, 5-15 P. M."

He said that he was not willing to trust either Phillips or Arbuckle, and for that reason sent the above telegrams to appellant; that he relied on the statements contained in the replies to his telegram, and sent $ 400 to the appellant. It turned out that the Newark poultry only amounted to about 1,579 pounds. The poultry was worth 9 1/2 cents per pound in the market.

Appellant adduced testimony tending to show that it had a bill of sale for the poultry as security for money it had advanced to Arbuckle in purchasing it, but that it had not taken possession of the poultry; that when the first telegram to Dorsey was sent by it, the poultry was scattered about in a room and was not in coops; that it was in charge of Arbuckle, who stated that the chickens would weigh 7,000 pounds, and, relying upon his statement, it sent the first telegram; that the poultry was loaded in the car for shipment when the second telegram was sent; that the poultry was not weighed when it was loaded in the car, and reliance was had on Arbuckle's statement in sending the weight, and that the amount was sent in good faith believing it to be true. Arbuckle denied making any statement to appellant's agents in regard to the weight of the poultry.

This suit was brought by appellee against appellant to recover damages for false representations. The grounds upon which appellee relied for a recovery, and upon which appellant predicated its defense, are sufficiently set forth above. Other evidence was adduced by both parties to establish their respective contentions, and appellee adduced evidence to show the amount of damages it suffered; but the views we shall hereinafter express render a further statement unnecessary.

The case was tried before a jury, and resulted in a verdict for appellant. Appellee filed a motion for a new trial, which was granted. The case is here on appeal; the appellant stipulating that, if the judgment granting a new trial be affirmed, judgment absolute may be rendered in this court under sections 1188 and 1238 of Kirby's Digest.

The order granting the new trial appears in the record proper, and does not show upon what grounds it was granted. In the bill of exceptions, however, it appears that the motion was granted because the court erred in refusing instructions 5 and 6, asked by appellee and in giving instruction 8, at the request of appellant.

Instruction Nos. 6 and 8, just referred to, were upon the measure of damages. The jury returned a verdict for appellant, who was the defendant. If it had found for appellee, who was the plaintiff, under the undisputed evidence, it...