Moore v. Murrell

• Decision Date: 18 June 1892
• Parties: MOORE v. MURRELL
• Court: Arkansas Supreme Court

19 S.W. 973

56 Ark. 375

MOORE v. MURRELL

Supreme Court of Arkansas

June 18, 1892

APPEAL from Lonoke Circuit Court, JOSEPH W. MARTIN, Judge.

W. R Moore sued George P. Murrell, a nurseryman, upon a judgment upon certain notes for a sum aggregating $ 1,788.71, obtained against him in 1878. The defendant answered that in 1879 he turned over to plaintiffs lawyer fruit trees worth $ 2,100 in full settlement of the judgment. The defendant testified that in 1879 he was insolvent, and that he received letters from S. Brundidge, plaintiff's attorney, ordering fruit trees in settlement of the judgment obtained against him; that he shipped them in good condition, and that they were worth $ 2,100; that he never heard from Brundidge, although he wrote to him twice about the matter; that he also wrote to plaintiff, who lived at Memphis, Tenn., but got no response.

Brundidge testified as follows:

"Something over ten years ago, while I was reading law, and before I was admitted to practice, the claim of W. R. Moore against G. P Murrell was placed in my hands for collection by some traveling agent, I think, of W. R. Moore--at least it was some traveling man--with instructions to take it and do the best I could with it, as it was regarded as a bad claim. I instituted suit in the Lonoke circuit court on the Murrell claim, and, not having license to practice, Mr. Coody's name was signed to the complaint as attorney. Afterwards when I had been licensed to practice and had removed to Jacksonport, learning that Murrell was insolvent, I corresponded with him with a view of adjusting the claim carrying out my instructions to do the best I could with it. Mr. Murrell wrote me that he was in the fruit tree business and was unable to pay any money on the claim, but would ship me about four hundred dollars worth of fruit trees. This letter from Murrell has been lost or destroyed. Upon inquiry I learned that a good lot of fruit trees could be disposed of in Jackson county, and I got Mr. I. T. Davis to act as agent for me in disposing of the trees at Newport. Davis made out the order, which I signed, and which is here shown to me. Murrell was instructed by letter to ship trees to Newport and my name was signed to the letter by Davis. I wrote Murrell, giving him particular instructions how to ship the trees. Davis reported to me that the trees came in bad condition and not enough was realized to pay the freight. I never received anything from Murrell for Moore except those trees. I never had any correspondence with Moore about this claim at any time whatever, and I did not know whether the claim was a note or an account. I do not know who placed the claim in my hand; my best recollection is that it was some traveling agent of W. R. Moore. I think this was some time in 1878, and I do not know where the party resided. I was not licensed at the time, but I suppose the party thought I would be soon. I don't recollect whether the party advanced any costs or not, but I don't think any costs were ever paid. I think I wrote the complaint and got Mr. Coody to sign it. I do not know how long I had the claim in my possession before I brought suit. My best recollection is that the party authorized me to take judgment, but the only positive instructions I received was to do the best I could. I never saw Murrell about the matter, but my recollection is that I wrote him before suing. I don't think it is possible for me to be mistaken either as to the time when I received the claim, or as to the party from whom I received it. I never had a line in writing from the party from whom I got the claim either before or after the judgment was taken. I never wrote W. R. Moore in my life and never received a letter from him."

The plaintiff testified that he never employed Brundidge and never authorized him to compromise the judgment; that about the time this judgment was recovered, plaintiff had a traveling man in Arkansas who had general authority to transact his business, but not to compromise this judgment nor to authorize any one else to do so.

The court charged the jury in the following language: "A...