National Fruit Products Co. v. Garrett , 121 Ark. 570 ( 1916 )

"Wood, J.,

(after stating the facts). The appellant sued the appellees as members of the firm of the Ola Company on account. The appellees defended on the ground that they were not liable as members of the firm of the Ola Company, but that the debt was the individual liability of E. E. Garrett, and that if the debt wtas the debt of E. E. Garrett, he had executed to appellant his individual notes, and that appellant had accepted same in settlement of the claim.

(1-2) The issue as to whether or not the account sued on was for goods purchased by appellee E. E. Garrett for ¡his individual use /and benefit, or whether it was a purchase by the Ola Company through E. E. Garrett as its manager, and therefore a liability of the company, was purely a question of fact for the jury under the evidence. Although we may differ with the jury as to the result of their verdict on this issue of fact, the rule here is not to disturb the verdict where there is some substantial evidence to support it. Under this rule there was ample evidence to sustain the verdict, and the issue was submitted under instructions free from prejudicial error.

The court did not err in refusing appellant’s prayers for instructions on this issue. It had sufficiently covered the issue' made by the evidence in granting appellees’ prayers for instructions. It was not necessary, after these prayers were granted, to go over the same ground by granting appellant’s prayers concerning this issue.

The court properly refused appellant’s prayers in which facts were recited and a peremptory instruction was asked in favor of appellant, for the reason, as we ■have stated, that when the evidence is viewed in its strongest light for the appellees it made an issue of fact for the jury.

(3) The court did not err in granting appellees’ prayer to the effect that there could not be a verdict on the notes, for the reason that the notes were not sued on, and in refusing to grant appellant’s prayer asking for a peremptory instruction against the appellee, E. E. Garrett. The court in thus holding correctly confined the jury to the only issue raised by the evidence, that is, as to whether the account sued on was a liability against the appellees as members of the firm of the Ola Company or the individual liability of appellee, E. E. Garrett.

(4) The court should not have instructed the jury at /all on the question as to whether or not the account in suit had been paid (by an 'agreement between appellant and appellee E. E. Garrett to the effect that the latter should execute his notes to the appellant, and that the appellant should accept the same in satisfaction of the account sued on. This was not the issue. The appellant was contending, 'and the only evidence it adduced tended to prove, that the account was that of the company. The appellees on the other hand, were contending that the account was the individual account of appellee E. E. Garrett. The testimony in regard to' the execution of the notes had reference solely to the issue as to whether or not the debt was an individual liability or a liability of the company. But the error of the court in instructing the jury in regard to the purported payment of the account was not prejudicial error against appellant, because both appellant and ap-' pellees joined in the request for instructions as if the issue of payment of the account by an agreement to execute these notes was presented by the evidence. If such an issue had been presented, the instructions on the issue were not erroneous, for, if the evidence presented such an issue, it was sufficient to warrant a finding by the jury that the notes were executed under an agreement between the appellant and the appellee, E. E. Garrett, to the effect that he should execute the notes, and that appellant would accept the same in payment of the debt sued on.

(5) While the court erred in permitting a copy of the purported letter from appellant to its attorney, the error could not have been prejudicial to appellant for the reason that the contents of the letter were all favorable to -appellant. The letter stated appellant’s contention and set forth the history of the transaction entirely from appellant’s viewpoint.

(6) The court correctly held that, under the evidence in this case, there could be no recovery against E. E. Garrett individually on the notes, for the notes were not introduced in evidence, and were not produced or offered to be surrendered and cancelled upon payment. See American Ins. Co. v. McGehee Liquor Co., 93 Ark. 62.

There is no reversible error in tbe record, and tbe judgment must therefore be affirmed.