Holland Banking Co. v. Hearn , 116 Ark. 238 ( 1915 )

Wood, J.,

(after stating the facts). The court erred in submitting to. the jury the issue as to whether the guaranty contract was unreasonable and unconscionable in its terms. This was not an issue, under the evidence, proper for the jury to pass upon. The terms of the contract were ambiguous (and its construction was for the court and not the jury. Moreover the conditions in the contract which appellees claim rendered the same ■unreasonable and unconscionable were not so in fact or in law. The seller of the horse had the right lo guarantee the horse to be a sure breeder and to exact that if he did not prove satisfactory to the purchasers because of not being a sure breeder that the purchasers should deliver him to the stables of the seller at Springfield, Missouri, by the 1st of March, 1911, as specified in the contract. There was nothing in the language of this provision to warrant the court in submitting- to the jury to determine the question as to whether the contract was unreasonable and unconscionable, .and certainly there was nothing in this language itself to warrant the court in declaring as .a matter of 1-aw that it was an unreasonable and unconscionable contract because of such stipulation. The parties were dealing at arms length. If the time fixed by the contract -for the return of the horse did not give appellees time in the course of nature to test his breeding qualities and to determine whether he was satisfactory to them, appellees should have demanded a longer time in which to make such test. They had the same knowledge of the period required for gestation in animals of the equine species us the agent of the Holland Stock Farm had. The purchasers were bound by the common knowledge of the required period for gestation the same as the' seller. It is not pretended that the seller of the horse practiced any deception or fraud upon the appellees by which the time for the return of the horse, in case he proved unsatisfactory, was fixed. As above stated, there is nothing in these terms themselves to show that they were unreasonable and unconscionable, and the appellees could not prove by oral testimony that they were unreasonable and unconscionable by showing that according to the time of gestation in animals of the horse species the time specified in the contract for the return of the horlse was too short to test his breeding qualities. The instruction was, therefore, ■abstract, misleading and prejudicial.

Appellant contends that the undisputed evidence shows that ■ the appellant was an innocent purchaser of the notes in suit, and that, therefore, the court erred in submitting that issue, and in also- permitting testimony to be introduced tending to show fraud in the exection of the notes. Inasmuch as the case must be reversed for the error in giving the instruction above mentioned, and since the cause must be remanded for a new trial, we will not pass upon the issue of fact as to whether the evidence was sufficient to sustain the verdict of the jury on the finding that appellant was not an innocent purchaser and also on the issue as to whether or not fraud entered into the sale and the execution of the notes. These issues will be left open for such development as may be had on a new hearing.

For the error indicated the judgment is reversed and the cause is remanded for a new trial.