Wright v. Liberty Central Trust Co. ( 1924 )

Hart, J.,

(after stating the facts). Counsel for the defendant assigns as error the action of the court in giving instruction No. 2, which is as follows:

“You are instructed that if the defendant, after receipt of the goods in question, if in fact he did receive them, kept t-he same, or attempted to dispose of them, then the defendant is liable on the contract, whether he authorized the delivery of the goods to him in the first instance or not.”

The instruction was erroneous, and necessarily prejudicial to the rights of the defendant. The instruction in express terms tells the jury that if the defendant, after the receipt of the goods, kept them, he is liable on the contract, whether he authorized it in the first instance or not. The theory of the defendant was that he did not know that his wife had ordered the goods for him until after he had received the package containing the jewelry and unpacked it. He wrote at once to the National Novelty Import Company, telling it that he did not want the jewelry and asking what disposition to make of it. The company directed him to keep the jewelry and to try to sell it for the company. He did so by special directions from the company, and his action in so doing could in no sense be said to ratify the unauthorized acts of his wife in purchasing the jewelry.

It is true that the theory of the defendant was submitted to the jury in an instruction asked by him, but the instruction given at his request was in .direct conflict with instruction No. 2 given at the request of the plaintiff. It is well settled that the giving of conflicting ,instructions upon the same point is prejudicial to the rights of the party appealing. The reason is that this court cannot know which instruction the jury followed in arriving at its verdict. Sweet v. McEwen, 140 Ark. .162; Henry Wrape Co. v. Barrentine, 129 Ark. 111; Goodell v. Bluff City Lumber Co., 57 Ark. 203; Grayson-McLeod Lumber Co. v. Carter, 76 Ark. 69; McGurry v. Hawkins, 83 Ark. 202; Cornish v. Friedman, 94 Ark. 282; Hodge-Downey Const. Co. v. Carson, 100 Ark. 433; and Marianna Hotel Co. v. Livermore F. & M. Co., 107 Ark. 245.

It follows that, for the error in giving instruction No. 2 at the request of the plaintiff, the judgment must be reversed, and the cause remanded for a new trial.