Scott v. Cleveland

• Decision Date: 05 February 1917
• Docket Number: 148
• Citation: Scott v. Cleveland, 192 S.W. 892, 127 Ark. 429 (Ark. 1917)
• Parties: SCOTT v. CLEVELAND
• Court: Arkansas Supreme Court

192 S.W. 892

127 Ark. 429

SCOTT v. CLEVELAND

No. 148

Supreme Court of Arkansas

February 5, 1917

Appeal from Clay Circuit Court, Western District; J. F. Gautney Judge; affirmed.

Judgment affirmed.

G. B Oliver, for appellant.

1. This is the third appeal in this case. The law was settled on the former appeals. 110 Ark. 9; 122 Id. 259; 183 S.W 197. Under the evidence and instructions there was only one proposition to consider, viz.: "Who, under the instructions, procured the purchaser and made the sale? The only rule for determining that question is found in instructions six and seven. The jury found for plaintiff but there is no evidence to support the verdict on any of the points in the instructions. Day refused to buy from James at the price asked. Day was solicited to buy after James' time had expired. Fleetwood had the agency to sell and consummated the trade. The evidence is fully developed and this cause should be dismissed. 88 Ark. 592, 594.

2. There is only one explanation of the verdict, and that is they did not understand the instructions--were confused and uncertain as to their meaning. Defendant's motion to amend or change the instruction should have been granted. All confusion or misunderstanding would have been eliminated if the modification had been made.

3. If the court had given the instructions asked by defendants, no confusion or misunderstanding would have resulted. But the court gave ambiguous instructions, refused to modify, and refused Nos. 5, 6 and 7 for defendant, all of which were errors.

4. Fleetwood has been paid and defendants should not be required to pay a second commission to one not entitled thereto.

C. T. Bloodworth, for appellee.

1. Scott made the contract with Cleveland and Cleveland procured the buyer. This was the contract as sworn to by Cleveland and the jury believed him, just as two other juries before did. The judgment should be affirmed. 121 Ark. 315; 110 Id. 9; 122 Ark. 243.

2. There is no error in the instructions--either in giving or refusing. Three juries have found for the plaintiff and found evidence sufficient to sustain a verdict. This litigation should end and the judgment should be affirmed. 121 Ark. 315.

OPINION

SMITH, J.

This is the third appeal of this case. Opinions on the former appeals are found in 110 Ark. 9, and 122 Ark. 259. Upon the first appeal the judgment was reversed because of the error of the court in refusing to grant a continuance, and the judgment was reversed upon the second appeal because of the error in refusing to give two instructions set out in the opinion.

Upon the third trial, from which this appeal is prosecuted, the court gave the instructions approved by us upon the second appeal. During the argument before the jury, a difference of opinion arose between counsel as to the meaning of instruction numbered 6, which is identical with instruction numbered 2 set out in the second opinion. This instruction reads as follows:

"6. Even though you should find from the evidence that plaintiff through Fleetwood, procured the man who finally purchased the timber; yet, if you further find that the man so procured, refused to buy the timber at the price asked, but later, after the time of James had expired was solicited by Fleetwood and that Fleetwood then had the agency to sell the timber at a lower price and consummated the trade through Fleetwood, then plaintiff would not be entitled to any commission and you will find for the defendants."

Counsel for defendants, who are now appellants, contended in his argument that the words, "at a lower price," meant at a lower price than John James had asked for the timber; while the attorney for the plaintiff, who is the appellee, argued to the jury that the words, "at a lower price," meant a lower price than it was offered by defendants; and the court refused the request of appellants to amend the instruction to read, "at a lower price than James asked Day for it."

The evidence is summarized in both former opinions, but a brief statement of it is essential to an understanding of this instruction. Appellee claimed a commission for making a sale of a tract of timber on land owned by appellants. The timber was sold to one T. E. Day through the efforts of one Fleetwood, to whom a...