Bailey & Co. v. Southwestern Veneer Co.

Supreme Court of Arkansas

Bailey & Co. v. Southwestern Veneer Co.

200 S.W. 280, 132 Ark. 63, 1918 Ark. LEXIS 104

CourtSupreme Court of Arkansas

DecidedJanuary 21, 1918

StatusPublished

Cited by1 cases

This text of 200 S.W. 280 (Bailey & Co. v. Southwestern Veneer Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bailey & Co. v. Southwestern Veneer Co., 200 S.W. 280, 132 Ark. 63, 1918 Ark. LEXIS 104 (Ark. 1918).

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Opinion

McCULLOCH, C. J.

This is the second appeal in the same ease, the facts being stated in the opinion delivered on the former appeal. 126 Ark. 257.

The issues are the same as on the first trial, and also the testimony adduced in support thereof, except that in the last trial the defendant introduced as a witness Mr. Lovelace,' the manager, and he denied that he accepted payment of the draft or agreed to do so, and also testified that the draft was accidentally lost. He admitted, however, that he had stated to witnesses that the draft had probably gone to the waste basket. The court gave a peremptory instruction in favor of the defendant and plaintiffs have appealed.

Under the law of the case, as stated in the former opinion, the evidence adduced in the last trial was sufficient to warrant a submission of the issue to the jury whether or not the draft had been wrongfully destroyed or lost by accident. It is true that Lovelace testified on behalf of the defendant that he did not intentionally destroy the draft, but lost it by accident, but there is testimony to the effect that he had told other parties that lie had thrown the draft into the waste basket and burned it up, and this constituted a conflict in the testimony to be settled by the verdict of the jury.

It was error, therefore, for the court to withdraw the case from the jury. Reversed and remanded for a new trial.

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McCULLOCH, C. J.

This is the second appeal in the same ease, the facts being stated in the opinion delivered on the former appeal. 126 Ark. 257.

The issues are the same as on the first trial, and also the testimony adduced in support thereof, except that in the last trial the defendant introduced as a witness Mr. Lovelace,' the manager, and he denied that he accepted payment of the draft or agreed to do so, and also testified that the draft was accidentally lost. He admitted, however, that he had stated to witnesses that the draft had probably gone to the waste basket. The court gave a peremptory instruction in favor of the defendant and plaintiffs have appealed.

Under the law of the case, as stated in the former opinion, the evidence adduced in the last trial was sufficient to warrant a submission of the issue to the jury whether or not the draft had been wrongfully destroyed or lost by accident. It is true that Lovelace testified on behalf of the defendant that he did not intentionally destroy the draft, but lost it by accident, but there is testimony to the effect that he had told other parties that lie had thrown the draft into the waste basket and burned it up, and this constituted a conflict in the testimony to be settled by the verdict of the jury.

It was error, therefore, for the court to withdraw the case from the jury. Reversed and remanded for a new trial.

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200 S.W. 280, 132 Ark. 63, 1918 Ark. LEXIS 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-co-v-southwestern-veneer-co-ark-1918.

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