Nutt v. Fry
| Decision Date | 21 June 1915 |
| Docket Number | 66 |
| Citation | 177 S.W. 1137,119 Ark. 450 |
| Parties | NUTT v. FRY |
| Court | Arkansas Supreme Court |
Appeal from Lawrence Circuit Court, Eastern District; John B McCaleb, Special Judge; affirmed.
STATEMENT BY THE COURT.
F. A Fry brought this suit in the justice court against S. M. Nutt upon a due bill and alleged that said S. M. Nutt was due him the sum of $ 45 with 6 per cent interest, "from....being the date the said defendant was paid the first money upon Ditch No. 2 of the Greene and Lawrence Drainage District, and that he had failed and refused to pay the same, etc." The due bill reads:
"November 30, 1911, due F. A. Fry $ 45, to be paid when collected for cutting Rite-of-Way No. 2 to be paid when first money collected on sed Rite-of-Way.--S. M. Nutt."
Defendant plead fraud and failure of consideration, and judgment was rendered in his favor in the justice court, from which Fry appealed to the circuit court.
On trial there the due bill was introduced in evidence, and its execution admitted and Nutt testified that he executed it in consideration that Fry would transfer to him his contract for cutting a certain portion of the right-of-way for Ditch No. 2 in Greene County. That after the contract was assigned to him, he went to Mr. Miller, the representative of the ditching contractors, to have it approved, and was told that the contract had been forfeited, and he would not approve it. He then made a contract with the principal contractors to cut a portion of the same right-of-way for which Fry had held the contract that had been assigned to him. He did not tell Fry that the contractors had declined to approve the transfer of the contract to him, nor that they claimed it was forfeited until some time after the transfer, and when Fry was insisting upon payment. Neither did he ask for the return of the due bill as he did not regard it worth anything.
Fry testified that he had the contract to clear the designated portion of the right-of-way for the ditch, and sold and transferred it to S. M. Nutt at his request for $ 45, as evidenced by the due bill, and that his contract was not forfeited at the time of the sale and transfer of it; and that he had never been notified by either the contractors digging the ditch nor Nutt that it was claimed to be forfeited until long after the transfer of the contract and execution of the due bill, and when he was insisting upon the payment of it.
Miller the superintendent of the clearing of the right-of-way testified that Nutt did some work on the right-of-way for No 2, and was paid about 75 per cent. of the cost; that this money was paid to Nutt, "who cut the right-of-way that was contracted to Fry originally;" that it was paid in the spring of 1912, 75 per cent. of the amount completed each month, and that up to June he had been paid something like $ 150. This witness also stated that he had cancelled the contract with Fry, and proceeded under the new contract afterward made with Nutt, which omitted two miles of the right-of-way included in original contract with Fry.
Each party requested an instructed verdict, and the court directed a verdict in Fry's favor, from the judgment upon which this appeal is prosecuted.
Judgment affirmed.
T. A. Turner, for appellant.
1. Plaintiff failed to show that any moneys had been paid or collected. 1 L. R. A. (N. S.) 1120-5; 40 Ark. 185. No consideration was proven. 14 Ark. 390; 7 L. R. A. (N. S.) 1035. The burden of proof was on plaintiff. It was error to admit testimony after plaintiff rested his case. A verdict should have been directed for defendant.
J. N. Beakley, for appellee.
1. The abstract does not comply with the rules. 112 Ark. 118; 55 Ark. 547.
2. This is a case of invited error. The complaint will be considered amended if defective.
3. No abuse of discretion by the court is shown in admitting testimony after plaintiff rested, 115 Ark. 230; 116 Ark. 30.
4. A general assignment that the verdict is contrary to the law and evidence is not sufficient. 117 Ark. 198.
5. A jury was waived. 117 Ark. 145; 100 Ark. 73; 92 Id. 278.
OPINIONKIRBY, J., (after stating the facts).
The case is not well abstracted, but sufficiently so, that it will not be dismissed for noncompliance with the rule. It appears that after the due bill was read in evidence, plaintiff rested his case, the defendant was examined, withdrew his testimony upon leave of the court, and asked a peremptory instruction, contending that the testimony did not show that any moneys had been paid to or received by him from the contractors for cutting the right-of-way, and insisting that it was necessary to prove that fact in order to recover.
The court denied the motion for a directed verdict, and the testimony was re-submitted, after which defendant renewed his motion for a directed verdict several times at other stages of the proceedings, which was denied.
It is insisted that the court erred in denying said motion and in permitting the introduction of the testimony over appellant's objection after plaintiff had rested his case. The conduct of the trial is within the discretion of the court, which permitted the introduction of other testimony by the plaintiff after he had introduced the due bill and rested, and unless there was a manifest abuse...
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