Whaley v. Vannatta

• Decision Date: 09 December 1905
• Citation: 91 S.W. 191,77 Ark. 238
• Parties: WHALEY v. VANNATTA
• Court: Arkansas Supreme Court

91 S.W. 191

77 Ark. 238

WHALEY v. VANNATTA

Supreme Court of Arkansas

December 9, 1905

Appeal from Monroe Circuit Court; GEORGE M. CHAPLINE, Judge affirmed.

STATEMENT BY THE COURT.

J. O Vannatta, a farmer of Monroe County, sold seven carloads of hay to J. F. Whaley, a dealer in hay at Stuttgart, Ark. The hay was delivered in cars at Roe, Arkansas, the nearest station to the home of Vannatta. Afterwards Whaley paid Vannatta $ 349.48 on the purchase price, and gave him a statement showing a balance of $ 131.88 due. Afterwards Whaley claimed that the hay had proved to be of an inferior quality, that his customers to whom he had sold it had rejected it; and he refused to pay the balance claimed by Vannatta. Vannatta brought an action to recover the price.

The defendant filed an answer, and also a counterclaim, in which he alleged that the hay was of grade inferior to that required by the contract, and he asked judgment for damages alleged to have been suffered by him.

On the trial the defendant exhibited to the jury samples of the hay shipped by him to a merchant at Pine Bluff, and also offered to exhibit other portions of it that had been returned to him from England, Ark., but the court, on objection, refused to permit him to do so, on the ground that it was not sufficiently identified. An attorney for plaintiff in the closing argument made certain remarks to which counsel for defendant objected. To quote the language of the bill of exceptions, the attorney said in substance "that a certain defendant in a certain trial whispered in the ear of each juror before retiring for deliberation that 'we fellows must stand together' (emphasizing this point) 'and that the jury returned a verdict for the defendant;' that in this case the defendant down there (meaning Stuttgart) and his witnesses were a crowd of commission merchants all along the line, or words to that effect, impliedly meaning that he (plaintiff) and the jury should stick together." The bill of exceptions then recites that "the defendant objected to the above language, and asked that his exceptions be noted of record which was done."

The jury returned a verdict in favor of plaintiff for $ 131.88, and judgment was rendered accordingly.

Defendant appealed.

Judgment affirmed.

H. A. Parker and Pettit & Pettit, for appellant.

The verdict is not supported by the evidence. That appellee failed to deny the testimony of appellant's witnesses, or any of them, will be taken against him. 16 Cyc. 1064; 70 Ark. 385. The argument of appellee's attorney to the jury under the circumstances was prejudicial. 75 Ark. 577. The court erred in denying appellant's application to introduce a sample of the hay in evidence.

Thomas & Lee, for appellee.

The jury are the exclusive judges of the testimony and of the weight to be attached to it. 6 Ark. 428; 19 Ark. 121; 23 Ark. 50; 26 Ark. 360; 45 Ark. 165; 41 Ark. 331. The subjects and range of argument of counsel are necessarily in the discretion of the presiding judge. 34 Ark. 649; 38 Ark. 304.

OPINION

RIDDICK, J. (after stating the facts).

This is an appeal by the defendant from the judgment against him for the balance due for the price of hay sold him by plaintiff. The evidence tends very strongly to show that the hay was of an inferior quality, but there is a conflict in the evidence on that point, and we see no reason for disturbing the judgment on that ground.

The court, we think, did not err in refusing to allow the defendant to exhibit to the jury two bales of the hay which defendant claimed was a part of the carload of the hay he had sold to Fagan & Underwood of Stuttgart, and shipped by them to a customer at England who had returned these two bales to Fagan & Underwood as samples of the hay. This carload was not shipped from Stuttgart, but from Roe, Arkansas, where it was delivered by plaintiff. Underwood, who testifies as a witness, does not say that he had ever seen the hay before it was shipped to his customer at England. This customer at England testified in his deposition that he returned "samples" of the hay by freight to Underwood, but he does not describe these samples, or say whether he returned as much as two bales or...