Wallace v. Strickler

• Decision Date: 09 May 1910
• Citation: 128 S.W. 565
• Parties: WALLACE v. STRICKLER.
• Court: Arkansas Supreme Court

128 S.W. 565

WALLACE v. STRICKLER.

Supreme Court of Arkansas.

May 9, 1910.

Appeal from Circuit Court, Woodruff County; Hance N. Hutton, Judge.

Action by I. N. Strickler against W. W. Wallace. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

I. N. Strickler brought this suit against W. W. Wallace to recover the sum of $320 alleged to be due him for services rendered in procuring a sale of certain lands. The undisputed facts are that Mrs. M. L. Anderson owned certain lands in St. Francis county, Ark., and gave to one Geo. H. Poston an option to sell said lands, which expired on May 12, 1909. Poston sold his option to the defendant W. W. Wallace. On May 1, 1909, Poston and the plaintiff, I. N. Strickler, went to the office of Wallace at Hunter, Ark., and entered into a conversation with him in regard to the sale of the land. The testimony as to what occurred there and afterwards in regard to the land is conflicting. The testimony on the part of the plaintiff was to the effect that the defendant represented to them that he was the owner of the land, and that he made a contract with them to sell the land for him, and that there was no time limit to the contract; that about the 1st of May they procured purchasers for the lands, who paid a part of the purchase money, and agreed in writing to pay the balance on the 19th day of May, 1909; that on the latter date the purchasers came to the town of Hunter to complete the sale; that the balance of the purchase price was offered to, and a deed to the lands demanded from, the defendant; that defendant declined to make the sale. Subsequently, on the same day, defendant sold the lands to the same parties and on the same terms as had been agreed upon between them and the plaintiff. He declined to pay the plaintiff any commissions for procuring the sale. The testimony on the part of the defendant was that he did not enter into any contract with Strickler in his office on the said 1st day of May, but that his contract was with Poston. That he never told them that he was the owner of the land, but, on the other hand, represented that he had an option on the land that would expire on the 12th day of May, 1909, and that if a sale of the land was made, it would have to be closed by that time. There was a jury trial, which resulted in a verdict for the plaintiff. From the judgment rendered, the defendant has appealed to this court.

G. Otis Bogle and Thomas & Lee, for appellant. H. M. Woods and Trice & Trice, for appellee.

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

Counsel for the defendant urge upon us that the judgment should be reversed because the court refused certain instructions asked by them, but as insisted by counsel for plaintiff, they are in no attitude to complain of this for the reason that they have not seen fit to abstract the instructions given by the court. In such case, the presumption is that the court correctly instructed the jury, and that all of defendant's instructions which should have been given were covered by those given. Carpenter v. Hammer, 75 Ark. 347, 87 S. W. 646; Files v. Law, 88 Ark. 449, 115 S. W. 373; St. L., I. M. & S. R. Co. v. Boyles, 78 Ark. 374, 95 S. W. 783.

The court also refused to give instruction No. 4...