O'Neal v. Richardson

• Decision Date: 03 March 1906
• Citation: 92 S.W. 1117,78 Ark. 132
• Parties: O'NEAL v. RICHARDSON
• Court: Arkansas Supreme Court

92 S.W. 1117

78 Ark. 132

O'NEAL v. RICHARDSON

Supreme Court of Arkansas

March 3, 1906

Appeal from Lawrence Circuit Court; Frederick D. Fulkerson, Judge affirmed.

Judgment affirmed.

S. D Campbell, for appellant.

1. Instructions 3, 4, 5 and 6 were erroneous. Kirby's Digest, §§ 529, 530; 64 Ark. 244.

2. The court erred in orally instructing the jury that they must make concessions. 58 Ark. 282; 60 Ark. 49.

3. The court erred in orally instructing the jury over appellant's objection. 71 Ark. 367.

H. L Ponder and Jno. W. & Jos. M. Stayton, for appellee.

1. Instructions are to be construed together, and, when taken together, if the matter is fairly submitted to the jury, the verdict will not be distrubed, though one be inapplicable or misleading. 48 Ark. 396; 37 Ark. 238; 21 Ark. 357; 59 Ark. 422; 58 Ark. 353. Error that is not substantial and prejudicial is no ground for reversal. 8 Ark. 313; 27 Ark. 306; 43 Ark. 535; 51 Ark. 132; 59 Ark. 431. A judgment, right on the whole record, will not be reversed for error appearing in the record. 10 Ark. 9; 23 Ark. 115; 4 Ark. 525; 14 Ark. 114; 19 Ark. 96; 2 Ark. 115; 21 Ark. 469; 23 Ark. 121; 24 Ark. 326, 587; 26 Ark. 373; 44 Ark. 556; 43 Ark. 296; 46 Ark. 542, and numerous other citations.

2. It was proper for the trial judge to make plain the duty resting on the jury to agree, if possible, on a verdict. 60 Ark. 49.

3. Appellant can not now complain that an instruction was given orally which he did not ask to be reduced to writing.

OPINION

BATTLE, J.

L. E. O'Neal brought this action against V. G. Richardson and J. M. Jackson, partners doing business as Richardson & Jackson, to recover the possession of certain twenty-three bales of cotton. Richardson and Jackson answered, and denied that the cotton belonged to O'Neal, and alleged that the cotton was their property, and that they had sold the same to Lesser-Goldman Cotton Company and the Planters Compress Company. These companies, purchasers, intervened and claimed to be the owners, and entitled to the possession of the cotton.

Richardson & Jackson were operating a round-bale cotton gin, and in order to operate the same it was necessary to buy seed cotton to furnish the gin. They were without sufficient means to continue the operation of the gin, and applied to O'Neal for assistance; and finally entered into an agreement with him, under and in pursuance of which O'Neal claims that all the cotton ginned by Richardson and Jackson was purchased by and belonged to him, and that when it was ready for shipment he sold it to them, and that under this agreement and arrangement the cotton in controversy was purchased by him, but never was sold to them, and still belongs to him.

Richarsson & Jackson say that they had $ 350, and that, under the agreement with O'Neal, he signed a note for $ 350, as surety, and they borrowed on it $ 350, and this and the other $ 350, making $ 700, were placed in his hands for the purpose of paying for the cotton to be purchased by them; that he acted as their cashier, and in pursuance of said agreement, and for his protection against any losses on account of being their surety, paid with their money for the cotton purchased for the gin, and received the proceeds of the sale of the cotton sold by them, and with such proceeds paid for other seed cotton; and in this manner the gin was kept in operation. He was to receive compensation for his services. They further say that the cotton in controversy was purchased by them and sold to interveners, and that O'Neal "had nothing to do with it."

Each party adduced evidence in the trial in the action which tended to support his or their contention. Evidence was also adduced which tended to prove that the interveners were purchasers of the cotton in controversy for a valuable consideration without notice of any lien thereon.

Over the objections of the plaintiff the court instructed the jury as follows:

"3. If you find from a preponderance of the evidence herein [that], in order to secure the means to run their gin, the defendants, Richardson & Jackson, induced the plaintiff to go upon their notes to the bank for money and to make advances to them from time to time, [that] they agreed [that] the plaintiff should hold all funds received by defendants, and [that] all cotton shipped or sold by them was delivered to plaintiff by the delivery of the bills of lading therefor, and [that] the plaintiff was to be repaid his advances and for the money borrowed on his name, and he was to receive a compensation therefor, such an arrangement would not confer the title of the cotton upon the plaintiff.

"4. If you find, from a preponderance of the evidence herein [that] the defendant requested O'Neal to become their surety to the bank, and the defendants further gave him certain sums of money, and [that] it was further agreed [that] he should hold the money and disburse the same for seed cotton for them, and hold the bills of lading therefor and collect the proceeds of sale and repay his advances, and was later on to receive compensation for services rendered, such an arrangement would not be sufficient to give such a title to the plaintiff as would entitle him to recover in this suit, and you should find for the interveners.

"5. If you find from the evidence that the plaintiff was not the absolute owner of the cotton in controversy, but was to hold the same or proceeds thereof until he was made safe or repaid for advances made by him, such would not be sufficient, but the cotton must have been actually delivered to him; and if you find the cotton in controversy was bought and ginned in the ordinary course of business, and the same was never delivered to O'Neal, he can not sustain his action against the interveners, and you will find for the interveners.

"6. If you further find from the evidence that O'Neal became surety for Richardson & Jackson to the Bank of Newport for $ 350, and that he...