Roe Rice & Land Co. v. Strobhart , 123 Ark. 146 ( 1916 )

Wood, J.,

(after stating the facts). During the progress of the trial the court made remaks (in addition to those set out in the statement) while evidence was being adduced concerning the instrument under which appellee claims, as follows: “the instrument was a regular contract;” “We will accept the contract in preference to an imaginary theory;” “Did he come down there to do What he did, to make that agreement to buy that property;” “He (Strobhart) says he accepted that, the written instrument, and it was the terms.”

These remarks were contrary to section 23, article 7 of the Constitution, and invaded the province of the jury. Sharp v. State, 51 Ark. 147-58; Bishop v. State, 73 Ark. 568-73.

The controlling issue in the case was, whether or not the written instrument under which appellee claimed to be the owner of the property in controversy was the contract of appellant. Under all the evidence in the case this was an issue for the jury, which the court should have submitted without such comments. Necessarily the jury must have concluded that in the opinion of the court the instrument under which the appellee claimed was a contract binding on the appellant.

All these remarks were improper, highly prejudicial to appellant and constitute reversible error. They indicated the opinion of the trial judge on the issue of fact which should have been submitted under appropriate instructions. The court by its ruling in the exclusion of certain evidence, and the remarks made when ruling thereon, and in the giving and refusing of prayers for instructions, proceeded with the trial under a misapprehension of the effect of the written instrument. There was evidence from which the jury might have found, on correct instructions, that Halwe the agent of appellant had no authority, express or implied, to bind appellant by the instrument which he executed and which is the basis of appellee’s claim, and also there was testimony from which the jury might have found that the making of such a contract was not within the’ apparent scope of Halwe’s authority.

It is unnecessary- to set out and discuss specifically the rulings upon the prayers for instructions.' The principles of law applicable to the facts of this record are familiar and have been repeatedly announced by this court.

The judgment, for the errors indicated, is reversed and the cause is remanded for new trial.