Maurice v. Hunt

• Decision Date: 12 November 1906
• Parties: MAURICE v. HUNT
• Court: Arkansas Supreme Court

97 S.W. 664

80 Ark. 476

MAURICE v. HUNT

Supreme Court of Arkansas

November 12, 1906

Appeal from Jefferson Circuit Court; Antonio B. Grace, Judge affirmed.

Judgment affirmed.

Crawford & Gantt, for appellant.

1. The allowance of amendments is a matter within the sound discretion of the trial court, subject to review by this court in case of abuse. 68 Ark. 314; 60 Ark. 526. When a cause has proceeded to trial upon the issues made, and no new defenses are disclosed by the testimony, it is an abuse of discretion to allow defendant to amend his answer by adding a new defense which comes as a surprise to the plaintiff. For an analogous case, see 75 Ark. 465.

2. It was error to refuse to permit witnesses to testify as to the value of their teams. 56 Ark. 37.

3. The fourth instruction asked for by plaintiff should have been given. If the parties do not understand each other, there is no contract. 9 Cyc. 398; 66 Ia. 362; 7 So. 230; 24 S.W. 566.

Creed Caldwell, S. J. Hunt and T. M. Hooker, for appellee.

1. The allowance of amendments is addressed to the sound discretion of the trial court, and they ought always to allow them where they appear to be in furtherance of justice. 53 Ark. 263; 25 Ark. 7; 26 Ark. 360; 22 Ark. 164; 60 Ark. 526; 68 Ark. 314; 25 Ark. 7. This discretion will not be interfered with unless it is abused. 10 Ark. 428; 5 Ark. 208; 21 Ark. 329; 33 Ark 838. Appellant, having failed to ask for a continuance at the time the amendment was made, will be deemed to have waived that right, if it existed. In an action of replevin under a mortgage the defendant may always show payment as a defense. Appellant can not plead surprise. Kirby's Digest, § 6869.

2. There was no error in refusing testimony of witnesses as to the value of their teams.

3. The case went to the jury upon a conflict of evidence, under proper instructions, and the verdict has sufficient evidence to support it. 48 Ark. 495; 51 Ark. 467; 75 Ark. 111; 73 Ark 377.

OPINION

BATTLE, J.

F. W. Maurice brought an action against James Hunt to recover possession of two gray mules and damages for their detention. He alleged in his complaint that he was the owner and was entitled to the possession of them, that they were each of the value of $ 150; and asked for judgment for the mules and $ 100 damages for their detention. Summons and an order of delivery were issued and executed, the plaintiff having given bond; and, the defendant failing to give bond for the purpose of retaining them, they were delivered to the plaintiff.

The defendant answered, and denied that plaintiff was the owner or entitled to the possession of the mules.

Plaintiff claims the mules under a mortgage executed by the defendant to Charles Pruden and J. B. Avery, partners doing business as Pruden & Company, by which the mules were mortgaged to Pruden & Company to secure the payment of a note executed by the defendant to them on the 6th day of January, 1904, for $ 350 and ten per cent. per annum interest thereon from date until paid, and due on the 6th day of February, 1904. Plaintiff purchased this note and mortgage from Pruden & Company, and they assigned the same to him. The sole question in the case was, had the mortgage been satisfied? Plaintiff claimed that Hunt was indebted to him for note and for goods, wares and merchandise sold and delivered, and defendant alleged and testified that he had more than paid plaintiff all that he owed him by the labor and services of himself and his teams of horses and mules.

After the trial had commenced, and while one witness was testifying, the defendant was allowed to amend his answer by pleading payment, over the objection of the plaintiff. He asked for no continuance on account of such amendment.

After plaintiff had testified in his own behalf and stated what he agreed to pay the defendant for his teams, and no evidence to the contrary had been adduced, the court refused to allow him to prove by a witness, Avery, what the services or labor of such teams were worth. And the court refused to allow R. B. Maurice, the son of plaintiff, to testify in rebuttal, after the close of defendant's testimony, what the plaintiff paid for teams.

Each party adduced evidence in the trial tending to prove his claim as before stated.

After giving three instructions at the request of the plaintiff, the court refused the fourth as follows:

"4. If the jury believe from the evidence that the plaintiff intended to offer and did offer only four dollars per day, with board, for the services of defendant and a team of mules or horses, and that the defendant thought he was offered four dollars per day, with board, for each pair of mules or horses he furnished, then there was no agreement or contract of employment, and defendant is entitled to only the reasonable value of the services of his team and himself."

And among others gave the following:

"I. In this action the title of the plaintiff to the mules in controversy is based upon the mortgage executed by the defendant to Pruden & Company to secure the sum of $ 350 and interest. If there is any part of the debt so secured which remained unpaid and due at the time of the institution of this suit, then the plaintiff is entitled to recover. In ascertaining this fact--that is, whether there is any part of the debt so secured yet due--it becomes necessary for you to consider the state of the accounts existing between the two parties. As to the item for which the defendant claims credit--that is, for work and labor performed by himself and his teams--the burden is on the defendant to show by a preponderance of evidence what the contract was between him and the plaintiff, and how much he is entitled to recover for his services rendered in accordance with that contract. If you find that the plaintiff was to pay the defendant the sum of $ 4 per day for each team of two mules, or horses furnished by him, and his wagon, and his own services as driver, and was to feed the team and the defendant, and that his rate of pay was to be for "straight...