Dillon v. Hawkins , 147 Ark. 1 ( 1921 )

Wood, J.

The appellant instituted this suit in March, 1920, in the Poinsett Circuit Court against the appellees. He alleged that he sold -and delivered to the appellees one California Heavy Style Rig with drill stems for the sum of $22,000, $10,000 -of which was paid in cash and the balance evidenced by three promissory notes of $4,000 each, payable in thirty, sixty, and ninety days, which notes were past due and upaid. The appellees answered on May 10, 1920, and denied all material allegations of the complaint. They filed a counterclaim in which they alleged that at the time they purchased the drilling outfit from the appellant they had a contract to drill an oil well in the State of Louisiana; that appellant failed to deliver the machinery according to contract, which caused the appellees to forfeit their contract in Louisiana to their damage in the sum of $10,000; that they were damaged in the further sum of $981 for freight and de-. murrage and a further damage of $500 on account of having to remove the machinery from Shreveport, Louisiana, to Harrisburg, Arkansas; that one of the appellees, Seeley, since the purchase, in order to put the rig in condition for use in drilling, had purchased additional machinery in the sum of $6,000 and that it would require the expenditure of $6,500 more to make the rig complete as per contract. The record shows that on May 10, 1920, by special request the court set the cause for a hearing on May 14th. On the latter date the cause was called for trial. After the jury was impaneled, one of the counsel for the plaintiff below, appellant here, announced that he desired to take a nonsuit. The court thereupon informed counsel that the defendants below, appellees here, had filed an answer and cross-complaint in which they were asking for affirmative relief against the plaintiff, and that his action in dismissing the complaint w>ould not. interfere with defendants ’ right to prosecute their cross-complaint. The court further informed counsel for the plaintiff that he would be given time to file a reply to the cross:complaint and prepare for trial. Counsel for plaintiff thereupon announced that there was no service on the plaintiff (defendant in the cross-complaint), and that they would not do anything to enter plaintiff’s appearance. Thereupon, counsel for the defendants, cross-complainants, announced that they were ready to offer evidence on the counterclaim set up in the cross-complaint, which was done.

It is unnecessary to set forth, in detail, the testimony tending to prove the damages alleged in the cross-complaint. The testimony established the contract of sale as set up in the complaint and tended to show that, on account of the failure of appellant to deliver the drilling outfit as per the terms of the contract, the appellees were damaged in the sum of $10,000 in the loss of profits on' a certain contract to drill an oil well in Louisiana, and that on account of the delay appellees were required to pay a demurrage of $981 and additional freight bill of $500; that there was a difference of $16,000 between the drilling outfit which they had purchased of the appellant and the outfit which was delivered to them under their purchase from the appellant. In other words, the drilling outfit that they actually got was of the value of about $6,000.

No exceptions were saved on the trial of the cross-complaint to any of the rulings of the court in admitting evidence or in giving instructions. The jury returned a verdict in favor of the appellees in the sum of $27,481.

The appellant filed a motion for a new trial containing various assignments of error and among them that the verdict of the jury was contrary to the law and the evidence. These are the only assignments that we can consider, for there were no objections or exceptions during the progress of the trial to the rulings of the court which were assigned as error in the motion for a new trial. After hearing the evidence that was adduced on motion for a new trial, the court required a remittitur to be entered in the sum of. $10,500, which was entered by the appellees. Thereupon, the court overruled the motion for a new trial and entered a judgment in favor of the appellees in the sum of $16,981, from which is this appeal.

Under section 6231 of Kirby’s Digest, the appellees had the right to proceed to the trial of their counterclaim, .although appellant had taken a nonsuit on the notes. The record shows that the court expressly advised appellant that he had the right to file a reply or answer to the counterclaim of appellees and offered to give appellant time to do so and to prepare for a trial on the counterclaim. But the appellant announced that he did not care to file any further pleadings; that there was no service on the appellant, and that he did not wish to do' anything to enter his appearance. It appears, therefore, that counsel for appellant misapprehended the law and allowed the trial on the counterclaim to proceed as though he were not a party to these proceedings. In its instructions the court told the jury that the only issue for them to determine was as to the amount of the damages. “If there is any evidence to sustain the verdict under any view of the law applicable to the case, then it should not be disturbed.” Chicago Crayon Co. v. Choate, 102 Ark. 603-605.

Appellee Seeley testified that appellant’s delay in' delivering the drill rig according to contract caused the appellees to p'ay $981 demurrage, and that there was a difference between the contract price of the drill rig purchased by the appellees from the a,ppellant and the outfit that was actually delivered to the appellees of $16,000. The testimony was therefore sufficient to sustain the verdict and the judgment for $16,981. After the appellant took the nonsuit and deliberately elected not to defend the action for damages, nor to ask for judgment for the balance of the purchase money, the court had no jurisdiction to render judgment in his favor in this proceeding offsetting the counterclaim by the amount of the notes. Appellant, by his conduct, allowed' the cause on the counterclaim to proceed to • judgment as an entirely independent action, and he could not by his motion for a new trial bring into this record matters which passed out when he took his nonsuit and elected not to challenge the allegations of the counterclaim. The judgment is correct, and it is therefore affirmed.

Hart, J., dissenting.