76 Ark. 98 | Ark. | 1905
The undisputed testimony shows that Gibbs was a subcontractor under Ford; that the Dalhoff Construction Company had no contract with him. The uncontroverted proof also shows that the Dalhoif Construction Company had no money in its hands belonging to Gibbs at the time the writ of garnishment was served on it. True, appellee’s witnesses testify that they heard Dalhoif say “that Gibbs got scared and run off before he was hurt; that there was $550 coming to him.” But Dalhoif did not say that his company was owing Gibbs any money, or that any money was coming to Gibbs from his company. Nor does the language warrant such an inference, in view of the positive proof, undisputed, that whatever was due from the Dalhoif Construction Company under its contract was due to Ford, and not to Gibbs; that Gibbs left some claims of laborers unpaid, which were liens upon the work, and which Ford had to pay off, and that it not only consumed all the money going to Gibbs on the contract, but that the Dalhoif Construction Company was compelled to advance Ford more money than was due him on the contract to pay the balance of these liens, and is still owing part of this balance.
In view of this proof we are of the opinion that the court erred in not giving instruction number one. The majority of the judges are also of the opinion that there was no evidence to justify the court in submitting to the jury the question as to whether or not Ford was the agent of the Dalhoif Construction Company, and that the court erred in doing so.
For the error indicated the judgment is reversed, and the cause is remanded for new trial.
