Lutes v. Lerner

• Decision Date: 17 November 1930
• Docket Number: 238
• Citation: 32 S.W.2d 439,182 Ark. 713
• Parties: LUTES v. LERNER
• Court: Arkansas Supreme Court

32 S.W.2d 439

182 Ark. 713

LUTES v. LERNER

No. 238

Supreme Court of Arkansas

November 17, 1930

Appeal from Mississippi Circuit Court, Chickasawba District; W. W Bandy, Judge; affirmed.

STATEMENT OF FACTS.

Appellees brought this suit for a balance due on a promissory note executed by appellant on March 7, 1927, the note being given for the purchase price of seed Irish potatoes for the spring of 1927, and for certain fertilizers to be used in connection with the growing of the potato crop.

Appellant admitted the execution of the note and defended on the grounds that he had been employed by the appellees to assist their agent in securing contracts for the sale and growing of potatoes in Mississippi County, and rendered services to appellees thereunder in an amount greater than the amount claimed upon the note which was pleaded as a payment thereof. Also that the said potatoes furnished were of an inferior quality without sufficient germinating properties to sprout and were not fit for the purpose for which they were intended and purchased. That because of appellees' breach of warranty, he was not liable for any balance on the purchase price of the potatoes and that the consideration for the note had failed.

The case was tried to a jury which returned a verdict against appellant from which this appeal is prosecuted.

Judgment affirmed.

Harrison Smith & Taylor, for appellant.

Lowell W. Taylor and Keeble T. Herron, for appellee.

OPINION

KIRBY, J., (after stating the facts).

No error is alleged to have been committed by the trial court in the first phase of the case, and the verdict of the jury is conclusive of that issue.

There was much testimony introduced, but it was shown that the potatoes delivered to appellant were "certified" indicating there had been four inspections of them before delivery, and others testified that the potatoes were examined upon being unloaded from the car and appeared to be in good condition, there being no evidence of their having become overheated or injured from cold. The appellant, himself, admitted that the potatoes were of good and uniform size and appeared to be in good condition when received by him.

The testimony upon the part of appellees by farmers of long experience conduces to show that the season of 1927 was so unusually wet at planting time as to cause most of the potatoes planted in appellant's vicinity to rot in the ground and bring about...