Nutt v. Fry , 119 Ark. 450 ( 1915 )

Kirby, J.,

(after stating the facts). The case is not well abstracted, but sufficiently so, that it will not be dismissed for noncompliance with the rule. It appears that after the due bill was read in evidence, plaintiff rested his case, the defendant was examined, withdrew his testimony upon leave of the court, and asked a peremptory instruction, contending that the testimony did. not show that any moneys had been paid to or received :by him from the contractors for cutting the right-of-way, and insisting that it was necessary to prove that fact in order to recover.

The court denied the motion for a directed verdict, and the testimony was re-submitted, .after which defendant renewed his motion for :a directed verdict several times at other stages of the proceedings, which was denied.

(1) It is insisted that the court erred in denying said motion and in permitting the introduction of the testimony over appellant’s objection after plaintiff had rested his case. The conduct of the trial is within the discretion of the court, which permitted the introduction of other testimony by the plaintiff after he had introduced the due bill and rested, and unless there was a manifest abuse of this discretion, Ms action in permitting the introduction of such testimony, will not be controlled here, and the cause reversed because of it. It was doubtless the court’s purpose in permitting it to ascertain the truth of the matter to be determined in furtherance of justice, and he could in the exercise of such discretion permit the introduction of other testimony, notwithstanding the plaintiff may before have announced that his evidence was all in, and we do not find any abuse of discretion in his doing so. Oak Leaf Mill Co. v. Cooper, 103 Ark. 79; St. Louis, I. M. & S. Ry. Co. v. Grimsley, 90 Ark. 64; Garner v. State, 97 Ark. 63.

(2) Appellant is not in a position to contend here that the court erred in its ruling as to whom the burden of proof rested upon, since he made no objection to it, neither did he allege same as a ground for a new trial in his motion therefor. Jenkins v. Quick, 105 Ark. 467; American Ins. Co. v. Haynie, 91 Ark. 43; Cammack v. Southwestern Fire Ins. Co., 88 Ark. 505; Singer Mfg. Co. v. Reeves Lumber Co., 95 Ark. 363; Thielman v. Reinsch, 103 Ark. 307; Boshears v. Johnson, 101 Ark. 120.

(3) The trial was before the court without a jury in effect, since each party asked for an instructed verdict without asking other instructions. Under this condition we have held that the decision of the jury was waived and the matter at issue submitted to ia trial 'by the court, whose decision in directing a verdict has the same effect as would have been given to the verdict of the jury upon the issue without such direction. St. Louis S. W. Ry. Co. v. Mulkey, 100 Ark. 73; Supreme Tribe of Ben Hur v. Gailey, 117 Ark. 145.

(4) The statement filed before the justice alleges that the defendant has been owing the sum claimed, “from the date the said defendant was paid the first money on Ditch No. 2 of the G-reene and Lawrence Drainage District,” and it was competent to show that he had received the money for cutting the right-of-way mentioned in the due bill, since it states, “the amount was to (be paid out of the first money when collected for cutting the right-of-way.” The testimony shows that he received $150 or more for cutting that portion of the right-of-way for which appellee had a contract to do the work, which he assigned to appellant, receiving in consideration, the due bill sued upon.

Appellant, it is true, testified that the contract was transferred to him, but also that he received no benefit from it, the principal contractors he said having declared it forfeited and cancelled it and given him a new contract to cut the same right-of-way. Appellee denied that his contract was forfeited, however, and the right of the contractors to cancel it, and the record does not show what the contract was, appellant claiming to have lost it after it was transferred and delivered to him by the appellee.

The testimony is sufficient to support the judgment, which is affirmed.