| Ark. | Nov 7, 1910
(after stating the facts). 1. It is insisted by counsel for the defendants -that the court erred in the instructions given and in refusing those asked by defendants; but, under our rules of practice, we can not consider these assignments of error. The bill of exceptions does not show that there were any exceptions saved to the ruling of the court in giving or refusing instructions. It is stated in the motion for a new trial that the court erred in this respect; but this is not sufficient. On appeal, “the matters complained of, together with the objections and exceptions to the rulings of the court, must be brought into the record by bill of exceptions, and the motion for a new. trial can serve no other purpose than to assign the ruling or action of the court as error.” McKinley v. Broom, 94 Ark. 147" date_filed="1910-03-07" court="Ark." case_name="McKinley v. Broom">94 Ark. 147, and cases cited.
It will be remembered that the defendants were sureties on the bond of A. J. Miller, principal contractor for the erection of the school house at Arkadelphia. The testimony on the part of the plaintiff tends to show that Miller made default on his contract, and that the sureties on his bond took charge of the erection of the building and undertook to complete it according to the terms of his contract; that E. M. Hall, one of the sureties, was placed in direct charge of the work, and was so engaged while the plaintiff performed his contract; that he did not inform plaintiff that Miller had made default in his contract, but concealed that fact from him. E- M. Hall, on cross examination, admitted that he took charge of the work upon an agreement between Miller and his bondsmen. Under such circumstances, it can not be said that the finding of the jury in response to query or instruction No. 1 is without evidence to support it.
2. The contract between the plaintiff and Miller was made by correspondence between them. These letters were introduced in evidence, and their introduction is assigned as error. The defendants were sureties on the bond of Miller, and completed his contract by arrangement with him. This is admitted by one of their number, and is not denied by the others. They thus assumed to carry out his contracts. While in charge, they permitted plaintiff to perform his contract, and after its completion accepted it. They are estopped from denying the terms of the contract; and it was competent to prove its terms by the letters in question.
3. We are of the opinion, however, that the court erred in reducing the verdict. While, as was held in the case of Taylor v. Grant Lumber Co., 94 Ark. 566" date_filed="1910-04-25" court="Ark." case_name="Taylor v. Grant Lumber Co.">94 Ark. 566, the trial court may set aside the verdict and grant a new trial where the finding of the jury is clearly against the weight of the evidence, it has no power to reduce the amount found by the jury and enter judgment therefor. Such action on the part of the court invades the province of the jury, and takes away from the parties the full benefit of the judgment of the jury, as guarantied by the Constitution.
The trial court may tell the jury in a proper case that there is no question of fact for it to determine; and may also set aside a verdict for errors committed by the jury, and grant a new trial; but it can never substitute its judgment for that of the jury upon a disputed question of fact. It is obvious that, if the trial court could do this, the verdict of the jury would have no binding force, but would be persuasive merely, as is the case of the verdict of a jury in a chancery court.
The amount to be recovered by the plaintiff was a disputed question of fact, and it was the exclusive province of the jury to determine it. This rule is established by an unbroken line of decisions in this court. See Crawford’s Digest, vol. 2, pages 905 and 906; Ib. vol. 3, pages 463 and 464.
The court should have entered judgment for the amount of the verdict, $506.40; and for the error in reducing the amount of the verdict and entering judgment therefor, the judgment will be reversed, and the cause remanded with directions to enter judgment upon the verdict.