Doyle v. Kavanaugh , 87 Ark. 364 ( 1908 )

Hart, J.,

(after stating the facts). The principal point which appellants urge for the reversal of this case is the giving of the second instruction. The vice of this instruction consists in the fact that it ignores the testimony of appellants to the effect that the supply account was also secured by the mortgage on the mules and wagon. Applying the proceeds of the Brewer note 'to the payment of the $195.00 note under appellee’s theory of the case, there might still be a balance due appellants on the supply account. The second instruction took from the consideration of the jury the question of whether or not the account for supplies had been paid, or was secured by a mortgage on the property in controversy. This error was eliminated from the sixth instruction, which covered the same phase of the case,' but the two instructions are irreconcilable and conflicting. No attempt was made to explain the first instruction in the latter. It can not be known whether the jury found for the appellee because it believed that the Brewer note was given to secure the purchase price of the mules and wagon and was sufficient to pay it, as directed by the second instruction; or because it believed that the mortgage was given to secure both the $195 note and the account for supplies, and that the whole indebtedness had been paid.

An erroneous instruction is not cured by another instruction which is correct, if it can not' be said which influenced the jury. St. Louis, Iron Mountain & Southern Ry. Co. v. Beecher, 65 Ark. 64.

For the error in giving the .second instruction, the judgment is reversed and the cause remanded for a new trial.