Koch v. Kimberling

• Decision Date: 12 March 1892
• Citation: 18 S.W. 1040
• Parties: KOCH v. KIMBERLING.
• Court: Arkansas Supreme Court

18 S.W. 1040

KOCH v. KIMBERLING.

Supreme Court of Arkansas.

March 12, 1892.

Appeal from circuit court, Logan county; HUGH F. THOMASON, Judge.

Action by W. N. Kimberling against Peter Koch for breach of contract. From a judgment affirming a judgment of the justice of the peace in favor of plaintiff, defendant appeals. Affirmed.

Sandels & Hill, for appellant. W. N. Kimberling, pro se.

COCKRILL, C. J.

Justices of the peace have jurisdiction where the amount involved does not exceed $300, "in matters of contract." Article 7, § 40, Const. 1874. The term "matters of contract" embraces a suit for unliquidated damages when the suit is founded upon contract. Stanley v. Bracht, 42 Ark. 210; Railway v. Heath, 41 Ark 477; Bullinger v. Marshall, 70 N. C. 520; Telegraph Co. v. Lovejoy, 48 Ark. 301, 3 S. W. Rep. 183. The short written statement filed before the justice in lieu of a complaint in this cause declares upon the contract alleged to have been entered into between the parties, and seeks damages for its breach. The action, though for unliquidated damages, is ex contractu. The justice, therefore, had jurisdiction.

It is conceded by the appellant that the damages suffered by the appellee, down to the date of the judgment, were recoverable. The amount of the verdict is not in excess of the damages proved by the appellee's testimony to cover that period. We cannot, therefore, disturb it. The appellant argues that the court erred in refusing to charge the jury as requested by him, but his exception on that score has not impressed him as being serious enough to require him to point out the error by setting out the prayers in his abstract in accordance with the rules. We therefore take it as a waiver of the objection. Questions on the admissibility of evidence are also alluded to in the printed argument, but the abstract does not show that any objection was made at the trial or exception saved, or that a new trial was asked on that ground. We treat it, therefore, as though all these steps had been omitted. Affirmed.