S. B. Locke & Company v. forrester

• Court: Arkansas Supreme Court
• Writing for the Court: HART, J.
• Citation: S. B. Locke & Company v. forrester, 252 S.W. 9, 159 Ark. 224 (Ark. 1923)
• Decision Date: 28 May 1923
• Docket Number: 12
• Parties: S. B. LOCKE & COMPANY v. FORRESTER

252 S.W. 9

159 Ark. 224

S. B. LOCKE & COMPANY v. FORRESTER

No. 12

Supreme Court of Arkansas

May 28, 1923

Appeal from Sebastian Circuit Court, Fort Smith District; John Brizzolara, Judge; reversed.

Judgment reversed and cause remanded.

Hill & Fitzhugh, for appellants.

The undisputed testimony shows that appellant company was a partnership; and the court erred in giving instructions Nos 2 and 3, there being nothing in the record upon which to base them. The record herein is altogether different from that on former appeal set out in 149 Ark. 233. The corporation company thought it was not doing business in Arkansas, and it is doubtful whether it was (151 Ark. 269), and, on advice of counsel, formed itself into a partnership on Oct. 10, 1918, a year and a half before any of the transactions involved in this suit were had. The partnership was duly formed and certificate made thereof as required by laws of Oklahoma. Rev. Statutes Oklahoma, 1910, §§ 4469, 4473-4. The testimony of J. M. Locke was sufficient, even if all the other testimony had not shown the partnership. 80 Ark. 396; 101 Ark. 532. Exceptions to rule in 82 Ark. 86. The unimpeached and uncontradicted testimony of these witnesses takes case out of exception, and, in addition, it is shown by the cashier of the bank and the records of the corporation made at the time. The court erred in submitting this issue to the jury.

Joseph R. Brown and James B. McDonough, for appellees.

On the former appeal the case was reversed because the question of whether or not the appellant was a partnership or a foreign corporation had not been submitted to the jury. 149 Ark. 225. Appellant introduced some new testimony in this trial which however, does not take away the issue of fact and questions of law raised and decided by this court in the previous hearing. The court did not err in not directing a verdict for appellant. Only interested witnesses testified as to the existence of the partnership, and one contradicted the others to a certain extent. 47 Tex. Civ. App. 24; 103 S.W. 708; 82 Ark. 89; 106 Ark. 571; 88 Ark. 550. The opinion in 80 Ark 396 does not vary the rule announced in 82 Ark. 89. The trial court in the hearing of this case pursued the course ordered by this court, and the judgment should be affirmed. 111 Ark. 196.

Hill & Fitzhugh, in reply.

The law of the case on the former appeal, as erroneously contended by appellees, is not the law of the case now on a different record. 79 Ark. 475; 129 Ark. 43; 135 Ark. 201. The testimony on the issue of a partnership is totally different from the testimony in the former record. Case of 103 S.W. 708, cited by appellees, and others to like effect distinguished, the rule as to uncontradicted and unimpeached reasonable testimony of interested witnesses being different in this State. 101 Ark. 532; 129 Ark. 369. There was not contradiction or dispute of the testimony in the question of partnership, and the giving of the instructions submitting the question of its being a foreign corporation calls for a reversal.

OPINION

HART, J.

S. B. Locke & Company sued C. E. Forrester and others to recover damages for the breach of an implied warranty of quality of forty-four bales of cotton bought by the former from the latter. The plaintiffs recovered judgment in the circuit court against the defendants, and upon appeal to this court the judgment was reversed because the lower court erred in holding that the undisputed evidence showed that S. B. Locke & Company was a partnership at the time of the purchase of the cotton.

One of the defenses to the case was that S. B. Locke & Company was a foreign corporation, and was doing business in the State of Arkansas contrary to the provision of our statute. Hence the materiality of the issue as to whether S. B. Locke & Company was a foreign corporation or a partnership.

Because of the error in the circuit court in holding that the undisputed evidence showed that S. B. Locke & Company was a partnership, the judgment was reversed and the cause was remanded for a new trial. Forrester v. Locke, 149 Ark. 225, 231 S.W. 897.

Upon the remand of the case and the retrial thereof in the circuit court, the question of whether or not S. B. Locke & Company was a foreign corporation doing business in this State without complying with our statute, was submitted to the jury. The jury returned a verdict in favor of the defendants, and the plaintiffs have duly prosecuted an appeal to this court.

The only assignment of error is that the court erred in not telling the jury that, under the undisputed evidence in the case, S. B. Locke & Company was a partnership. S. B. Locke & Company did not claim to have complied with our statute relative to foreign corporations doing business in this State, and it would be necessarily prejudicial to their rights if the court erroneously submitted to the jury the question of whether S. B. Locke & Company was a partnership, as claimed by the plaintiffs, or whether it was a foreign corporation, as claimed by the defendants.

Counsel for the defendants insist that the holding of this court on the former appeal, that the undisputed evidence did not show that S. B. Locke & Company was a partnership at the time it purchased the cotton is the law of the case, and is conclusive of that question upon this appeal.

We do not agree with counsel in this contention. Of course it is well settled in this State that, if a cause be appealed to the Supreme Court, and the judgment be reversed, and the cause remanded to the circuit court for a new trial, and a second appeal be taken, it brings up for review nothing but the proceedings subsequent to the reversal.

It is equally well settled that the decision of the Supreme Court rendered upon a given state of facts only becomes the law of the case as applicable to the same facts, and if the cause be remanded for a new trial, the parties have the right to introduce new evidence and establish a new state of facts. When this is done, the decision of the Supreme Court upon the former appeal ceases to be the law of the case, and the circuit court is not conclusively bound by the decision of the Supreme Court on the former appeal, but should apply the law applicable to the new and changed state of facts. Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475, 96 S.W. 393, and Rushing v. Horner, 135 Ark. 201, 204 S.W. 1145.

This brings us to a consideration of the question of whether or not, upon the second trial in the circuit court, the evidence on the question of whether or not S. B. Locke & Company was a partnership or a foreign corporation was in all essential respects the same as upon the first trial of the case.

W. R Locke was the manager of the business of the plaintiffs at Fort Smith, Arkansas, and purchased the cotton in question. Upon the former appeal the court said that the only evidence in the record to the effect, that S. B. Locke & Company was conducting the business at Fort Smith was that of J. M. Locke, and that J. M. Locke was one of the parties to the suit. The court also said that his evidence was disputed by that of W. R. Locke. The opinion of the court recites that W. R. Locke first testified that S. B. Locke & Company constituted a partnership and afterwards that it was a corporation in...