Grist v. Lee

• Decision Date: 29 May 1916
• Docket Number: (No. 28.)
• Citation: 186 S.W. 825
• Parties: GRIST v. LEE.
• Court: Arkansas Supreme Court

186 S.W. 825

GRIST v. LEE.

(No. 28.)

Supreme Court of Arkansas.

May 29, 1916.

Appeal from Circuit Court, Logan County; Jas. Cochran, Judge.

Action by J. W. Lee against Ebenezer Grist. Judgment for plaintiff, and defendant appeals. Reversed, and cause dismissed.

Robt. J. White, of Paris, for appellant. D. E. Johnson, of Paris, for appellee.

SMITH, J.

The complaint in this cause contained the following allegations: That on the 16th day of January, 1915, the defendant (appellant) entered into a contract with plaintiff (appellee) agreeing to purchase the interest and equity of plaintiff in a certain well drill, and to pay therefor the sum of $350, and to assume the payment of balance due on said machine to the Lester-Sicard Machine Company, of Ft. Smith, in the sum of about $254; that defendant immediately took from the possession of plaintiff said machine, and, as he is informed and believed, has paid said balance due on said machine to the Lester-Sicard Machine Company; that the defendant on said date agreed to execute to plaintiff his two promissory notes in the sum of $175 each, bearing interest at 10 per cent., with security subject to plaintiff's approval; that said contract has been in all parts complied with except the execution of said notes on the part of defendant; and that he still neglects and refuses to execute said notes, and thereby has converted to his own use the said property of plaintiff, to his damage in the sum of $350. Wherefore judgment is prayed. The answer contained a general denial of these allegations.

Appellee's testimony as a witness was in substantial support of these allegations; but after the conclusion of his cross-examination he testified, on his redirect examination, that he never authorized Mr. Grist to get the drill, and that he did not know he had gotten it until it had been hauled away. This evidence was given over appellant's objection and exception.

Appellee says his suit is for the conversion of the drill, and that the effect of his allegations in regard to the contract is merely to furnish a measure for the damages sustained by the wrongful conversion of his property, and instructions were given which conformed to this view.

We do not agree, however, with the view that this is the effect of the allegations of the complaint. We think the complaint states clearly a cause of action for damages for a breach of contract, and that the court erroneously permitted appellee by his evidence to completely change...