Frauenthal v. Bridgman

• Decision Date: 17 March 1888
• Parties: FRAUENTHAL v. BRIDGEMAN
• Court: Arkansas Supreme Court

7 S.W. 388

50 Ark. 348

FRAUENTHAL v. BRIDGEMAN

Supreme Court of Arkansas

March 17, 1888

APPEAL from Logan Circuit Court, JNO. S. LITTLE, Judge.

This was an action of replevin to recover certain personal property, the possession of which was claimed by the plaintiff under four chattel mortgages, executed by the defendant. By one of these mortgages the defendant conveyed to the plaintiff two mules and also a crop of corn and cotton. It recites that the defendant was indebted to the plaintiff in the sum of $ 585, as the purchase money for such property, and also in the amount of his account on the books of the plaintiff, and is conditioned for the payment of the sum mentioned and all other indebtedness to the plaintiff which might exist at its maturity. On the trial evidence was given to the jury by the defendant to show that he did not in fact purchase the crop or mules referred to, and was never indebted to the plaintiff for their price.

Affirm.

L. C Balch, for appellant.

1. The court erred in admitting parol testimony to and contradict the terms of a written contract.

2. It also erred in instructing the jury that the defendant might show by parol that the contract was a different one from that set forth in the writing.

No authorities are needed to sustain these propositions.

Clendenning & Read, for appellee.

It is too late to raise objections to the admission of incompetent evidence. No objection was made to its admission in the court below. 6 Ark. 546; 13 Id., 443; 10 Id., 184.

2. No objection was made to the instruction complained of. The objection, if any, was to all the instructions en masse.

3. Parol evidence admissible to explain the consideration of a written contract. 95 N.Y. 578. Or show what the real consideration was or that there was none. 2 Devl. on Deeds sec. 822; 81 Ill. 281; Jones on, Const. of Com, and Trade Cont., sec. 195; 70 N.Y. 54; 27 Ark. 510.

OPINION

COCKRILL, C. J.

The two points relied upon by the appellants to reverse the judgment in this case go back to the same question, viz: the admissibility of parol evidence, which, it is said, varied the terms of a written contract between the parties to the suit.

It is argued that the judgment cannot stand, because when the incompetent testimony which went to the jury is disregarded the verdict is not sustained by evidence; and also because the court erred in basing one of its instructions to the jury upon the incompetent evidence.

It may be conceded that the evidence was incompetent. But no objection was made to its introduction, and there was no effort to cause it to be excluded from the consideration of the jury. The appellant accepted the issue tendered by the appellee, and introduced evidence in rebuttal of that presented by him. No specific objection to the instruction now complained of was made at the trial. It is not contended that the charge is wrong if the evidence is unobjectionable. Several distinct instructions were given to the jury in no wise connected with the incompetent evidence. Only a general exception was made to the charge. It did not designate any specific part of it as objectionable, and it must be disregarded.

The appellant's acquiescence in the admission of the evidence, and his failure to make specific objection to the jury's consideration of it, were sufficient to lead the court to believe that he waived his right to exclude the evidence, and desired to go to the jury unembarrassed by any advantage to be gained by closing the lips of his adversary as to the transactions had between them. It would be manifestly unfair to hear his objection after he has voluntarily taken his chance at winning the verdict on the line adopted, and...