First National Bank v. Peugh

• Decision Date: 29 October 1923
• Docket Number: 202
• Citation: 255 S.W. 4,160 Ark. 517
• Parties: FIRST NATIONAL BANK v. PEUGH
• Court: Arkansas Supreme Court

255 S.W. 4

160 Ark. 517

FIRST NATIONAL BANK v. PEUGH

No. 202

Supreme Court of Arkansas

October 29, 1923

Appeal from Polk Circuit Court; James S. Steel, Judge; reversed.

Judgment reversed, and cause remanded.

Norwood & Alley, for appellant.

Appellant should have had a directed verdict. To sustain a verdict on appeal there must be some substantial evidence to support it. 118 Ark. 349; 69 Ark. 659; 7 Ark. 435. A judge should not express his opinion upon the evidence. It constitutes prejudicial error. 34 Ark. 696; 98 Ark. 83; 116 Ark. 482. Incompetent evidence was admitted and must be treated as prejudicial unless shown that it was not, 69 Ark. 648; 105 Ark. 205; 89 Ark. 556. Instruction No. 4 should have been given. It was based upon the contract, the language of which contains no ambiguity. 67 Ark. 553; 79 Ark. 172; 105 Ark 213; 101 Ark. 353; 112 Ark. 165; 131 Ark. 134; 149 Ark. 55; 145 Ark. 344. Instruction No. 6, to the effect that, if Keller did some hauling for Hall with Hall's truck, this was not a violation of the contract, should have been given. 91 Ill.App. 81; 45 Iowa 106; 137 Iowa 636; 60 N.H. 198; 35 P 395; 119 N.W. 358. The intention of the parties to a contract should be derived from the whole instrument. 109 Ark. 537; 116 Ark. 212. Instruction No. 3, given for plaintiff, without the amendment offered by defendant, was erroneous. One who receives a negotiable instrument before maturity, as collateral security for a preexisting debt, may be a holder for value in due course of business. 94 Ark. 387; 102 Ark 422. Appellant released its mortgage on the proerty Keller sold to Appellee. This was a valuable consideration. 63 Ark. 604.

Minor Pipkin and Lake & Lake, for appellee.

A plea of res judicata, to become effective, must be made an issue by the pleadings themselves. 107 Ark. 38. The construction of the contract was for the jury, since it did not clearly appear upon its face what the intention of the parties was. 99 Ark. 368; 81 Ark. 561.

OPINION

WOOD, J.

This is an action by the appellant against the appellees. The appellant alleged, among other things, that it was the holder of a certain promissory note executed January 4, 1922, by the appellees to one I. T. Keller in the sum of $ 1,075 with interest, on which there had been a payment of $ 225, leaving a balance of $ 850 due, with interest at 10 per cent. from July 4, 1922. It alleged that the note was secured by a mortgage on certain personal property, which it described, and prayed that it might have judgment for the balance due on the note and for possession of the property, in order that it might sell the same and apply the proceeds to the payment of the note. The appellee answered, admitting the execution of the note and mortgage, and set up, by way of affirmative defense and for cross-relief, that, at the time of the execution of the note, a contract was entered into between Keller and Peugh whereby Peugh purchased of Keller his dray business in the town of Hatfield, together with the good will of the business; that, by the terms of the contract, Keller, in consideration of the purchase money, agreed that he would not re-enter the dray business, and that, if he did so, the note should become null and void and the amount thereof considered as liquidated damages for such breach of contract; that Keller, in violation of the contract, re-entered the dray business in the town of Hatfield, and, after he had thus breached the contract, refused to deliver the note to the appellees. The appellees also averred that the appellee Peugh had complied in all particulars with the terms of the contract on his part. They denied that the appellant was the legal holder of the note, and denied that the appellant was entitled to recover the amount thereof from the appellees. They also denied that they unlawfully detained the possession of the property from the appellant. They prayed that the complaint be dismissed, and, as cross-relief, that the appellant be ordered to surrender the note, and that same be canceled.

At the conclusion of the evidence adduced by the respective parties the issues were submitted to the jury on instructions of the court. The jury returned a verdict in favor of the appellees, and from a judgment in their favor is this appeal.

1. The appellant contends that the court erred in not granting its prayer for instruction directing the jury to return a verdict in its favor. Without setting out and discussing the testimony on this issue, it suffices to say, we have examined same, and we conclude that there was an issue for the jury to determine under the evidence.

2. The appellant prayed certain instructions concerning the construction of the written contract between Keller and Peugh evidencing the sale of Keller's dray business to Peugh. That contract, so far as it is material to set forth, is as follows: "This contract and agreement entered into this 5th day of January, 1922, by and between I. T. Keller, hereafter known as the party of the first part, and L. A. Peugh, hereinafter known as the party of the second part, witnesseth: Party of the second part has bought the dray business from the party of the first part in the incorporated town of Hatfield, Arkansas, and said party of the first part hereby agrees that he will not haul, transfer or in any way deliver any merchandise, household goods, or any other article for pay in said town; that he will not in any way infringe on the dray business of the party of the second part. Should the party of the first part not do as he agrees above, then payments mentioned in a certain note and mortgage from party of the second part to party of the first part become null and void, and said payments shall cease, unless it is mutually agreeable between both parties that said delivery or deliveries be made."

Under the terms of this contract Keller could not, after that day haul, transfer, or in any way deliver merchandise, household goods, or any other article for pay in the town of Hatfield. Keller, under this contract, as we construe it, could not accept the articles mentioned in the contract to be hauled, transferred or delivered for pay, where such was done wholly within the town of Hatfield, nor could he accept such articles to be hauled, transferred or delivered for pay, whether the hauling, transferring, or delivering was to be done within or without the town of Hatfield, because, by the express terms of the contract, Keller agreed that he would not in any way infringe on the dray business of Peugh. It would be an infringement on the dray business of Peugh to...