83 Ark. 47 | Ark. | 1907
Elmore and Curry sold Booth and- Crumpler an elevator for the purpose of hoisting cotton from wagons to gins operated by them; and it was claimed by Booth and Cru-m-pler that there was a warranty to the effect that the elevator would properly feed two sixty-saw gins. Twenty-five dollars was paid on the purchase price, and notes were given for the balance, in which notes -title to. the elevator was reserved.
Suit was brought in justice’s c-ourt on the notes, and an affidavit for specific attachment was filed, the notes being attached as exhibits to the affidavit. After the case reached the circuit court on appeal, Booth and Grumpier filed an answer in which they admitted the execution of the notes, but pleaded a breach of warranty, and sought thereby to defeat the recovery of the balance of the purchase money and to recover back the twenty-five dollars paid, and in addition to this they claimed damages:
First: That they lost the ginning of twenty-four bales which would have been ginned by them had it not been for the defective work of the elevator, by which they lost $60.
Second: Owing to the slowness of the elevator’s work, they were forced to work extra time, often at night, requiring •them to burn wood to -the value of thirty dollars more than they otherwise would have done.
Defendants recovered seventy-five dollars damages, and the plaintiffs have brought the case here.
The court instructed the' jury that the burden of proof was on the plaintiffs to «how their right to recover by a preponderance of the evidence. In this the court erred. The notes were admitted, and defendants pleaded a breach of warranty which they alleged released them from the payment of the balance of the purchase money and entitled them to recover what had been paid and also damages; and upon all these matters the burden of proof was upon the defendants.
There was a sharp conflict in the testimony as to the warranty and as to its breach, and this instruction was necessarily prejudicial. The items of damage claimed herein are too remote to be recoverable, and should not have been submitted to the jury. This subject is fully explained in Hooks Smelting Co. v. Planters’ Comp. Co., 72 Ark. 275. See also De Loach Mill Mfg. Co. v. Bonner, 64 Ark. 510, and 1 Sutherland on Damages (3d Ed.), § 4952.
Judgment reversed and cause remanded.