126 Ark. 554 | Ark. | 1917
Appellant was the owner of a note and mortgage executed by W. O. Rhoda to secure a note for $250 and interest, on two mules. The appellant brought suit in replevin before H. C. Hall, a justice of the peace of Chickasawba Township, Mississippi county, Ark., to recover possession of said mules, in order that appellant might sell them under the mortgage to satisfy said indebtedness. A bond was given and the mules were seized and sold for the sum of $186.00. The replevin suit was continued for a time and finally set down for hearing. Appellant failed to appear on the day of trial and judgment was entered in favor of appellee for the possession of the mules and their value fixed at $300. Judgment was also rendered in favor of appellee for. $75 damage for the wrongful detention of said mules. The orly written pleading filed in the justice of peace court was an affidavit for replevin. The cause was appealed to the circuit court and tiied on said affidavit, the oral plea of payment of said note and mortgage by appellee, the oral evidence of witnesses and other proofs. Judgment was rendered in favor of appellee for $199.13. The form óf the verdict of the jury is as follows:
“We, the jury, find for the defendant upon the cross-complaint in the sum of $199.13. ”
Appellant took the necessary steps and appealed the case to this court.
It appears that the checks issued by appellant in payment of the improvements from time to time made by appellee on appellant’s land in payment of the note and mortgage had written on them “paid in full.” Appellee testified that the checks were furnished to him for the purpose of paying men engaged in helping him and not for his services. Appellant contends that the court should have instructed the jury to the effect that these words written on the checks were conclusive and precluded appellee from cla ming anything furnished for improvements unless some fraud was shown. The court instructed the jury in instruction 8, that the indorsement of said words made a prima facie case against appellee and raised the presumption of full payment, but such a presumption might be overcome by a preponderance of evidence.
We do not think that the words “paid in full” indorsed on checks are conclusive, so this question was submitted to the jury on proper instructions. There being no error in the record, the judgment is in all things affirmed.