Shinn v. Plott

Citation101 S.W. 742,82 Ark. 260
PartiesSHINN v. PLOTT
Decision Date01 April 1907
CourtSupreme Court of Arkansas

Appeal from Pope Circuit Court; William L. Moose, Judge; affirmed.

Judgment affirmed.

Brooks & Hays and Sellers & Sellers, for appellant.

The account was not proved, nor was the account verified. Only books of original entry are admissible in evidence, and a proper foundation must be laid. 10 Ark. 402; 63 Id 562; 60 Id. 320; Id. 342; 53 S.W. 271; Abbott, Trial Evidence (2 Ed.), 400; 2 Wigmore, Ev. § 1530. No objection to incompetent testimony necessary. 42 Ark. 310. There is no testimony to sustain the judgment. The whole testimony is before the court for review, and should be treated as the findings of a chancellor. 55 Ark. 116; 41 Id. 294; 23 Id. 241.

R. B Wilson, for appellees.

The account cannot be questioned here for the first time. There was no such issue below. The finding of the court, like the finding of a jury, must stand if there is any legal evidence to support it.

OPINION

MCCULLOCH, J.

This is an action instituted by appellees, Plott, Newport & Company, a firm of merchants, against appellant, M. R. Shinn to recover the amount of an account for goods sold. The case was tried on appeal in the circuit court before the trial judge sitting as a jury, and judgment was rendered for the plaintiffs.

The goods charged on the account were delivered to one Stinnett, a sharecropper on defendant's farm, but plaintiffs claim that they sold the goods upon defendant's account, and delivered the same to Stinnett at his instance and request. This was denied by the defendant.

There is no proof of an express agreement on the part of the plaintiff to purchase the goods for Stinnett, or that the same were to be sold and delivered upon his credit, but members of the plaintiff firm, and one of the employees, testified to various conversations with defendant in which it is shown that he authorized the sale of the goods and impliedly agreed that the same should be sold on his account. The conversations detailed by them reasonably bear that construction, and were sufficient, if believed to be true, to warrant a finding that defendant authorized the sale and delivery of the goods on his credit.

There being evidence legally sufficient to sustain the finding, it is our duty not to disturb it. The findings, upon legally sufficient evidence, of the court sitting as a jury must be accorded the same degree of conclusiveness as the verdict of a jury. Schuman v. Sanderson, 73 Ark. 187, 83 S.W. 940, and cases cited.

It is contended by counsel for appellant that...

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  • Bray v. Timms
    • United States
    • Arkansas Supreme Court
    • January 28, 1924
    ...defenses or present theories of the case for which he did not contend in the trial court. 74 Ark. 88; 74 Ark. 557; Id. 312; 81 Ark. 549; 82 Ark. 260; 83 Ark. 575; 101 Ark. 95; 108 490; 131 Ark. 382; 132 Ark. 458; 149 Ark. 142. 5. Timms, while holding the legal title to the Garrett royalty b......
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    • November 21, 1910
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