Citation Numbers: 7 Indian Terr. 589, 104 S.W. 846
Judges: Clayton, Gill, Lawrence, Townsend
Filed Date: 9/26/1907
Status: Precedential
Modified Date: 1/1/2022
The appellee, a corporation, engaged hr furnishing meat supplies and the manufactured products of meat, on October 11, 1899, appointed appellant its agent to*
The appellant appeals and assigns errors, repeating’ the grounds set forth in the motion for new trial, with the additional error of the court in overruling the motion for new trial. Appellant, in his printed argument, reduces the assignment of errors to two points: The jurisdiction of the District Court to hear and determine the case, and its instruction to the jury to return a verdict for this appellee for the full amount of its claim, with 6 per cent, interest per annum. In support of the first he asserts that the filing within 30 days after j udgment of the affidavit required by the following provisions of the statute is jurisdictional. The provision is as follows: “No appeal shall be allowed unless the following requirements shall be complied with: First. The applicant, or some person for him, shall make and file with the justice (commissioner) an affidavit that the appeal is not taken for the purpose of delay, but that justice may be done him.” The decision of Bank vs Hinchcliffe, 4 Ark. 445, cited by counsel, construing this statute favorable to appellant’s view, appears to have been overruled by the Supreme Court of Arkansas in the case of Wilson vs Dean, 10 Ark. 308, which holds: “The doctrine we have laid down in this case conflicts in principle, as we conceive, with Browdie et al vs Whitfield, 7 Ark. 515, where the court dismissed the case because no affidavit for appeal was in fact made, although the records show that the parties in these cases entered their consent of record that the appeal might be granted without the affidavit as required by law.” The case
The further contention of the appellant that the court erred in instructing the jury to return a verdict for the appellee under the evidence is not well taken. This involves the construction of the contract of employment. It scarcely appears from reading it that there is any ground for suspecting room for misapprehension of its meaning.- It expressly provides that appellant shall account to appellee “for weights shipped, and no claim for shortage is to be allowed by' us, unless after careful investigation we find that error was made. * * * You are to handle and sell all goods without any expense whatever to Swift & Company, beyond the commission hereinafter named. * * * We will pay you the following commissions: 3 per cent, on canned goods; 23^ per cent, on all other products.” There is no evidence appearing that there was any special instance and request from appellee that appellant should pay for taxes or freight, as is alleged in his answer. It was proved, and in no way disputed, that the shortage in- appellant's account amounted to the sum alleged to be due appellee. This condition of the case left nothing for the District Court to do but direct a verdict for the appellee.
The errors assigned are without merit.
The judgment is affirmed¡