Frolich v. Hicks

• Decision Date: 03 May 1920
• Docket Number: 373
• Citation: 222 S.W. 373,143 Ark. 565
• Parties: FROLICH v. HICKS
• Court: Arkansas Supreme Court

222 S.W. 373

143 Ark. 565

FROLICH v. HICKS

No. 373

Supreme Court of Arkansas

May 3, 1920

Appeal from Lonoke Circuit Court; George W. Clark, Judge; affirmed.

Judgment affirmed. Petition for rehearing denied.

Trimble & Trimble and Chas. A. Walls, for appellants.

1. The judgment should be reversed, because--

There is no evidence to sustain it.

The court erred in refusing to give instruction No. 3 for defendants.

The court erred in its general charge to the jury and in giving instructions Nos. 1, 2 and 3 for plaintiffs.

Because the court erred in permitting Grover C., O. E. and W R. Hicks and T. J. Cullar to give certain testimony.

Because the court erred in refusing to permit A. N. Hollingshead to answer certain questions and in refusing to permit witnesses C. G. Miller, E. R. Herron and J. E. Tull to give certain testimony. The testimony shows the incapacity of the well to furnish sufficient water and that Lane & Bowler did not complete their contract until nine months after July, 1918, and that a second well was necessary.

Conjecture and speculation can not supply the place of proof. 113 Ark. 353; 116 Id. 82; 174 S.W. 452; 114 Id. 112; 117 Id. 638. See, also, 70 Ark. 385. Under the proof and the law the court should have directed a verdict for defendants.

2. Instruction No. 3 asked by defendants should have been given, as it was intended to cover the warranty of Lane & Bowler.

3. The instructions of the court given as a general charge were erroneous. The court gave the theory of plaintiff's case but did not mention or refer to the defense of the defendants. Instruction No. 1, given for plaintiffs, was error, as was also No. 3.

4. It was error to permit Grover C. Hicks to answer the questions asked him. His answer was guesswork, or opinion evidence; as also error to permit O. E. Hicks to answer the question as to the capacity of the well.

5. It was error to refuse to permit A. N. Hollingshead to answer the question asked him.

Jas. B. Reed and John P. Streepey, for appellees.

1. The evidence sustains the verdict. 126 Ark. 605-7.

2. There is no error in the instructions nor in the admission or rejection of testimony. 136 Ark. 231; 100 Id. 232-6; 110 Id. 612-16; 123 Id. 266-72; 108 Id. 500-2; 93 Id. 209-14.

OPINION

MCCULLOCH, C. J.

This is an action instituted by appellees against appellants to recover damages alleged to have been sustained by reason of the breach of a contract in regard to the renting of a rice farm for the year 1918 and an undertaking in said contract on the part of appellants to furnish the water to flood the rice crop. Appellant owned a rice farm in Lonoke County and entered into a written contract with appellees, agreeing to rent the farm to appellees for the years 1918 and 1919 for a certain share of the crop and also agreed to furnish an adequate supply of water with which to flood the rice, conditioned on Lane & Bowler Company furnishing a well on the premises of the capacity of 2,000 gallons per minute, in accordance with the terms of a contract between that company and appellants.

It is alleged in the complaint that Lane & Bowler Company furnished the well of the capacity mentioned and installed a pump therein, according to the terms of the contract, but that appellants failed to put in an engine of sufficient capacity to pump enough water to flood the rice crop, and that the crop failed for the lack of water. There was a denial of the allegations of the complaint, and on the trial of the issues before a jury the verdict was in favor of appellees.

It is contended, in the first place, that the testimony is not sufficient to sustain the verdict. The evidence tends to show that the quantity of water pumped from the well was insufficient to flood the rice crop; that the well furnished by Lane & Bowler Company was up to contract, in that it had a capacity of 2,000 gallons of water per minute, but that the engine used by appellants in pumping water was not of sufficient power to operate the pump to the full capacity of the well, or to afford sufficient quantity of water to flood the rice crop. The contract between the parties to the litigation, and also the contract between appellants and Lane & Bowler Company were both in writing, and there can be no dispute as to their contents. Lane & Bowler Company was only to furnish a well of the capacity mentioned and put in the pump. It therefore became the duty of appellants under their contract with appellees to furnish an engine of sufficient power to pump the necessary quantity of water from the well. If the well furnished by Lane & Bowler Company was not of the capacity mentioned, then under the contract between the present litigants, appellants were to be absolved from all liability on account of the failure to obtain sufficient quantity of water to flood the crop.

There was a conflict in the testimony on the issue as to whether or not the well furnished by the company came up to specifications. Some of the witnesses testified that it furnished much less than 2,000 gallons per minute, and others testified that it had a capacity of more than that quantity of water. That issue was properly submitted to the jury on legally sufficient evidence, and the verdict settles the issue against appellants.

The next issue in the case was whether or not an engine of sufficient power was furnished by appellants. There was a conflict also on this point, and the evidence was sufficient to warrant a verdict either way, according to where the jury found the preponderance to be. We can not say the verdict is unsupported on that issue.

There was also an issue as to the effect upon the rice crop and the amount of damages, if any, which resulted, and these issues were also supported by legally sufficient evidence. All of the issues were submitted to the jury on correct instructions.

Learned counsel complain of the court's instructions, particularly No. 3, which they say ignored the issue as to whether or not Lane & Bowler Company complied with their contract with respect to the well, and particularly as to the pump. There was no controversy in the case, as we understand, as to the sufficiency of the pump itself, but there was an issue as to the capacity of the well which Lane & Bowler Company was to furnish and the capacity of the engine which appellants themselves were to furnish. We think, as before stated, these issues were properly submitted to the jury and there was no error in the instructions.

Error is also assigned in the ruling of the court in permitting appellees themselves and other...