Harris v. Simpson , 50 Ark. 422 ( 1887 )

OPINION.

CocKEiLt., C. J.

There was no exception to the introduction, of any testimony, and no part of the court’s •charge to the jury was assigned as error in the motion for a new trial.' The motion is directed only to the court’s refusál to charge as requested by the appellant, and that the verdict is not sustained by the evidence.

*1. The rejected requests tb charge the jury were either inconsistent with a correct enunciation of the law, were not warranted by the testimony, or were Covered by the •court’s charge to the jury.

II. The appellee’s version of the transaction out of which the suit grew is sustained by the evidence, and the judgment in his favor is supported by the cases of Goodwin v. Robinson, 30 Ark., 535, and Hanger v. Evins, 38 Ib., 334.

III. The action originated before a justice of the peace, and itfis argued here, for the first time, that the •appellee’s counter-claim is, in effect, an action of deceit •and therefore a tort, and that the justice had no jurisdiction to hear and determine the issue made by it. The position is not tenable.

The defendant could have made the fraud practiced upon him .by the appellant available as a defénce to the extent of. extinguishing the demand against him by a plea of failure of consideration. Goodwin v. Robinson, Supra. And as to the recovery over against the appellant, the counter-claim may be regarded as an action, by the appellee, upon the promise, which the law implied, that the appellant would repay the money which he had wrongfully, received. Pomeroy on Remedies, etc., sec. 568.

Affirm.