154 Ark. 533 | Ark. | 1922
(after stating the facts). It is first contended by counsel for the- defendant that the judgment ■should be reversed because the complaint does not allege or attempt to allege any partnership relation in the cattle between Els and Carpenter. We cannot agree with counsel in this conclusion. The complaint alleges that said defendants are engaged in raising-, buying-, and marketing cattle and other live stock; that Els, acting for and on behalf of, the defendant Carpenter and himself, sold to C. H. Harris cattle belonging to the defendant Carpenter and received from him a cheek for $700, which was cashed by the plaintiff bank. This allegation is sufficient to allege a partnership between Els and Carpenter in raising the cattle. According to the testimony of Els, the original stock of cattle amounting to ten head belonged to Carpenter, and Els was to have one-half of the increase. His testimony is in accord with the allegation of the complaint, and the complaint in effect alleges a partnership between Els and Carpenter in the increase of the cattle of the original herd. Hence it cannot be said that the .case was submitted upon proof at variance with the allegations of the complaint.
It is next insisted that the verdict is not supported by the evidence. This is a very close question, but we are of the opinion that the evidence, together with all legal inferences that might be drawn from it, warranted the jury in returning a verdict for the plaintiff.
It is true that, according- to the testimony of Carpenter himself and that of Els, the jury might have returned a verdict for Carpenter. It is fairly inferable from the evidence that the cattle sold to Harris were partnership cattle. The bare statement of Carpenter and that of Els to the effect that such was not the case does not overcome the inference deducible from the attending circumstances, Els and Carpenter were to share equally in the increase of the cattle. They usually divided the cattle when they sold them. The cattle in question had not been set apart to Els by any agreement with Carpenter at the time he sold them. Els took the proceeds and paid a debt of Carpenter with $200 of the amount and deposited the balance to the credit of Carpenter. These circumstances speak for themselves and tend to show that the cattle sold were partnership cattle, and it cannot be said that the undisputed evidence showed that they belonged to Els.
Again, it is insisted that the court erred in giving instruction No. 1, which is as follows:
“If you find from a preponderance of the evidence that the check given by C. H. Harris to B. H.- Els on the Mcllroy Banking Company was not paid by Mcllroy Banking Company or by any one for it, and you further find that the check was given for cattle belonging to B. H. Els and defendant Carpenter as partners, or for cattle belonging to F. H. Carpenter, and Els was the agent of Carpenter in making the sale, or that Carpenter had and received an interest in the proceeds of said check by reason of having a beneficial interest in the cattle, you should find for the plaintiff as against Carpenter, and in determining these issues you will take into consideration all of the facts and circumstances in evidence.”
There was only a general objection made to this instruction at the time it was given. When considered in connection with the other instructions given by the court, we do not think it was misleading and prejudicial to the rights of the defendant Carpenter. In other instructions the jury was expressly told that if the cattle belonged solely to Els, and that Carpenter had no interest in them and did not receive any part of the proceeds of the check, the jury should return a verdict for Carpenter.
The court also told the jury that the mere fact that a part of the proceeds of the check was paid to Carpenter was not sufficient in itself to make Carpenter liable.
On the other hand, the jury was told that it must appear that some part of the. check was paid to him by reason of his having an interest in the cattle sold before it could find for the plaintiff. The jury was also expressly told that the declaration of Els to the cashier of the bank in the absence of 'Carpenter could not be considered for the purpose of establishing a partnership between Els and Carpenter.
The sole issue to be determined by the jury was whether or not Els and Carpenter were interested in the cattle at the time Els sold them and .cashed the check for their purchase price at the plaintiff bank.
We think that the question was fairly submitted to the jury, and that the evidence warranted the verdict in favor of the plaintiff.
The judgment will therefore be affirmed.