Weil v. Fineran , 78 Ark. 87 ( 1906 )

Wood, J.

This is the second appeal. Weil v. Fineran, 70 Ark. 509. On the first appeal the only question presented. was whether the trial court erred in dismissing the action for the alleged reason that it was prematurely brought. On that appeal we held that the suit was not prematurely brought, and that the lower court erred in dismissing the action. The court did not err in treating the action as a suit for breach of the contract, and in refusing to permit appellant to recover on a quantum meruit. Appellant had not elected to treat the contract as rescinded, but, on the contrary, his complaint shows that he was suing for a breach of the contract, and he was asking for damages accordingly. True, we said on the former appeal: “The appellant sued for breach of contract. Fie was entitled to recover on a quantum meruit.” This clause, “Fie was entitled to recover on a quantum meruit,” doubtless misled the learned counsel for appellant to contend below and urge here that appellant should be allowed to recover for the value of his services rendered appellee. But the clause mentioned was an obiter dictum, as the issue presented on the former appeal clearly shows. In the present trial the lower court apprehended the issue.

No error in the court’s rulings is presented by assignments of error 1, 2, 3, 4 and 5 of the motion for new trial. We find no error in the giving of the instructions numbered 2, 3, 4 and 5. The instructions properly presented the law applicable to the issue and the facts in evidence. The court erred, however, in giving instruction No. 6 as to measure of damages. Brodie v. Watkins, 33 Ark. 545. See also, Van Winkle v. Satterfield, 58 Ark. 621, on the issue of the breach of contract and the measure of damages therefor. See Brodie v. Watkins, supra, and Webber v. Davis, 66 Ark. 195, and Thweatt v. Freeman, 73 Ark. 575, on the question of the duty of good faith from the attorney to his client.

The court erred, also, in giving instruction' 7 at the request of appellee. That instruction was objectionable in telling the jury that, if Mrs. Fineran was induced to enter into the contract with Weil by the “false representation about the place of the death of Margaret J. Greenwood,” they might find in favor of appellee. There is nothing in the record to warrant the conclusion that appellee was induced to enter the contract on account of a false representation by appellant of the place of the death of appellee’s mother, Mrs. Greenwood. Under the undisputed facts of the record, such a representation was wholly immaterial, and could not have been an inducement for entering upon the contract. There is nothing to show that appellee acted upon such representation, that she was led by it into a course of conduct that she otherwise would not have pursued, and that was prejudicial to her interests. It is not shown that she was deceived by it, and prevented from getting information that she otherwise might have obtained that would have been beneficial to her interests. On the contrary, the undisputed evidence shows that appellee received the first information of her mother’s death and of her own status with reference to the estate from the appellant. Therefore, we do not see from this record how it was material whether appellee’s mother died in Pine Bluff or Little Rock. But, if it was material, appellee does not show how it was material, and. how she was prejudiced by it. Yet the court treats this specific and particular representation as material in the case. The court points it out, and tells the jury that if it was false and induced the contract appellee was not liable. The instruction in this respect, we think, was highly prejudicial, because the jury may have found in favor of appellant on other alleged matters of false representation, about which there was a conflict in the evidence, and found in favor of appellee upon this one. The vice of the instruction is in giving prominence to this specific representation, and treating it as material to the contract, when there is no proof to show that it was. The question is not even submitted to the jury as to whether it was a material representation or not. The court assumes that it was.

For these errors the judgment must be reversed, and the cause remanded for new trial.