55 S.W.2d 76 | Ark. | 1932
STATEMENT BY THE COURT.
This appeal is prosecuted from a judgment for damages arising from an assault and battery alleged to have been committed upon appellee. *703
The answer denied the allegations of the complaint and pleaded a release from all liability for damages.
It appears from the testimony that appellee, the wife of George McGuirt, share cropper on the farm of appellant, got into a controversy with appellant, who insisted that their children should help to pick the cotton raised on his premises, instead of being put in school. The dispute waxed warm, and she made a statement about what appellant could do about sending his own children to school, that he was beating his tenants out of enough to pay their tuition, and he told her that she knew she was lying, and she called him a son-of-a-bitch. He slapped her, and she struck him across the face with a milk bucket. They slapped each other several times, and she fell on a raised place in the road and he kicked her once after she fell, injuring her severely she claimed. After the difficulty some days, the parties conferred together, appellant first talking with the husband and making the agreement about the release, but refusing to proceed to its execution until appellee was informed about it and agreed to it. After the matter was agreed upon in her presence, appellant and the husband of appellee went to town and had a release prepared by an attorney, Mr. Charles Tompkins, each of the parties telling the writer of the release about the terms thereof. The original and copy of the duplicate release was taken back by the husband to his home and left by him in the house with his wife Mrs. McGuirt, appellee, who after retaining it about 30 minutes signed and returned it to the husband, who afterwards delivered it to appellant.
Mrs. McGuirt testified that she did not read the release, although she could have done so, and would not have executed it, had she known it contained the provision about the settlement of the claim for damages arising from the assault and battery. It was contended that she received no consideration for the execution thereof and was not bound thereby. She said no one was present when she signed the release, not even her husband, who *704 brought it to her and left it for her signature, and it was about 30 minutes before she did sign it. She never saw Mr. Hays after her husband brought the release in the house for her to sign, "and nobody ever paid her anything for signing the release." The testimony tended to show that the things agreed to be done in consideration of the release were all done. Appellee insisted that their part of the cotton gathered with the amount of ungathered cotton in the field that Mr. Hays was to pick under the agreement was more than enough to pay all their indebtedness to Mr. Hays for furnishing the making of the crop, leaving her husband one-half of the corn crop paid for and without any claim against it.
Hays and his brother, the bookkeeper, both testified that, after giving all the credits on the account to which McGuirt was entitled, and paying for the extra work, there was a balance due of $59.10, and the unpicked cotton in the field was only about 3 bales, which he gathered at a loss, having difficulty picking it until late and the cotton not being worth the cost of its picking.
The court instructed the jury giving over appellant's objection for appellee instruction No. 1. closing with the statement that, if the jury found certain things, they would find for the plaintiff, "unless you find that she has released defendant." The court also gave over appellant's objection an instruction on punitive damages, ending it with the same phrase as the first instruction. The court likewise gave instruction No. A regarding the purported release introduced in evidence, saying:
"There has been introduced in evidence a document purporting to be a release of defendant by the plaintiff. If you find from a preponderance of the evidence that there was no valuable consideration moving to the plaintiff from the defendant for the execution of the release, you are told to disregard the release. If, however, you fail to find from a preponderance of the evidence that there was no valuable consideration moving to the plaintiff *705 from defendant for the execution of same, you will find for defendant."
The court refused to give three requested instructions of appellant about the validity of the release, one telling the jury that, if she had sufficient natural capacity to understand the nature and consequences of it when executed, it would be binding, and the second that, unless the jury found that plaintiff was unable to understand what she was doing when she signed the release, they would find for the defendant. It likewise refused to instruct the jury that, if she executed the release and her damages were not greater than the amount owed to the defendant Hays by her husband at the time of its execution, and if they found for the plaintiff in an amount greater than the amount that the testimony showed was owing to the defendant Hays by her husband at the time of the execution of the release, they should return a verdict for that amount less the amount they should find was owing to Hays at the time of its execution. The jury returned a verdict assessing compensatory damages only at $2,500, and from the judgment thereon this appeal is prosecuted.
(after stating the facts). It is insisted that the court erred in instructing the jury that if they found "that there was no valuable consideration moving to the plaintiff from the defendant for the execution of the release," it should be disregarded. This instruction was erroneous, misleading and prejudicial. It cannot be said there was no valuable consideration for the execution of the release, whether it was moving to the plaintiff from, the defendant or not. The testimony on appellant's part conduced to show that the plaintiff herself received no consideration for the execution of said release, although she virtually admitted or at least did not deny that the things agreed to be done by the defendant in the release had all been done. The consideration could be a valuable one, whether it moved to her or not, as it *706
might be of benefit to the party promising or a loss or detriment to the party to whom the promise was made; it does not have to be both; it may be either. The court said in Phoenix Sidewalk Co. v. Russellville Water
Light Co.,
"As has been noted, the consideration need not move to the mortgagor. Hence the debt may be the debt of another and the consideration, for example, may consist in a loan to a third person, or a satisfaction of a debt due the mortgagee from a third person or in the release of a mortgage of a third person, or forbearance or extension to a third person debtor." 41 C.J. 387. See also 13 C.J. 324-25; Jonesboro Hardware Co. v. Western Tie
Timber Co.,
The compromise of a disputed claim furnishes sufficient consideration to uphold a settlement, even though the asserted claim is without merit. Gerdner v. Ward,
The release purported to be in settlement of all claims between the parties, and, as already said, the testimony tended strongly to show its terms were performed by the parties to the release.
It follows from what we have said that the court erred in giving the instruction complained about, and it was apparent from the testimony introduced that the erroneous instruction was prejudicial, and the judgment must be reversed on account of same. Under this view it is unnecessary to determine whether the verdict is excessive. For the error designated the judgment must be reversed, and the cause remanded for a new trial. It is so ordered.
MEHAFFY, J., dissents. *707
