Rose v. Lilly

• Decision Date: 02 November 1914
• Docket Number: (No. 214.)
• Citation: Rose v. Lilly, 170 S.W. 483 (Ark. 1914)
• Parties: ROSE v. LILLY et al.
• Court: Arkansas Supreme Court

Page 483

170 S.W. 483

ROSE v. LILLY et al.

(No. 214.)

Supreme Court of Arkansas.

November 2, 1914.

Appeal from Circuit Court, Mississippi County; W. J. Driver, Judge.

Action by R. C. Rose against O. R. Lilly and others. From a judgment for defendants, plaintiff appeals. Affirmed.

R. C. Rose brought suit for $350 balance upon a note executed by W. Isaacs and O. R. Lilly to C. E. Butler and indorsed by him to Rose. Appellees pleaded payment. It appears from the testimony that Rose acquired the $500 note executed by Isaacs and Lilly from Butler, the payee, upon which there was due an unpaid balance of principal with interest, and Rose, Butler, and Lilly met in the latter's office for the purpose of adjusting the balance due upon the note and paying it. Rose agreed to allow as a credit $200 paid by Lilly to Rinehart, and Lilly, at the request of Butler, gave Rose a check for $122 in settlement of the balance due. Rose put the check in his pocket and left the office and went over to a store in which he was interested, and returned after about 10 minutes with the check, saying he would not take it and insisted on applying the check to the payment of an individual account of the store against Lilly the maker of the check. A controversy arose and a fight ensued between Rose and Lilly, during which Rose dropped the check, which was afterwards found by Butler, who offered to restore it to Rose, who declined to receive it. The check has never in fact been paid, although it would have been cashed at any time had it been presented to the bank for payment. The court instructed the jury, giving instruction No. 3, over plaintiff's objection, as follows:

"If the plaintiff received the check on the 29th of April, 1913, for $122, which added to the $200 made the amount due the plaintiff in this case, and if he accepted such check in payment and such check would have been paid had it been presented, that is, if it represented the value of $122, the face of it, then it would be binding on the plaintiff, and if you so find, your verdict should be for the defendant; otherwise you should find for the plaintiff."

The jury returned a verdict in favor of the defendants, and from the judgment plaintiff appealed.

R. C. Rose, pro se. J. T. Coston, of Osceola, for appellees.

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

The testimony is uncontradicted that the parties met for the adjustment and payment of the amount of the note, and all the witnesses agree that, after...