Reed v. Rogers, 134 Ark. 528

Reed v. Rogers

134 Ark. 528 | Ark. | 1918

WOOD, J.,

(after stating the facts). (1) “There is no doubt that where the relation of suretyship exists between joint promisors upon a bill or note their relation may be shown as between themselves.” 2 Daniel on Negotiable Instruments, sec. 1336; Sloan v. Gibbes, 56 S. C. 480, 76 Am. St. Rep. 559-560, and cases cited in note.

In McGee v. Prouty et al., 50 Mass. (9 Metcalf) 547, it is said: “The law respecting sureties and their obligations to contribute proportionally does not arise out of a contract between them but is founded on principles of equity, and the obligation is enforced as a legal liability growing out of the mutual relation.” See also First National Bank v. Reinman, 93 Ark. 376.

The ruling of the court in giving and refusing the prayers for instructions and in admitting testimony was in conformity with the above doctrine.

(2) The provisions of the Constitution and statutes require judges in jury trials to reduce to writing their instructions on the request of either party. Art. 7, sec. 23, Constitution of 1874. Section 6196, sub-division 5, Kirby’s Digest. These provisions were not violated by the trial court in its manner of instructing the jury in the instant case. While the instructions were not reduced to writing before they were given to the jury,, they were reduced to writing before the trial was ended and were subject to the inspection and use of the counsel.

In National Lumber Co. v. Snell, 47 Ark. 407, Chief Justice Cockrill, speaking for the court, says: “There is nothing in the Constitution or the statute making it incumbent upon the court to reduce to writing an instruction to be given to the jury on its own motion before argument to the jury. The attainment of justice requires that the court should be vested with a sound discretion to instruct the jury at any time, even after they have retired to consider of their verdict. See also Burnett v. State, 72 Ark. 398-400.

(3) The appellant insists that the court erred in giving to the jury an oral instruction after they had been deliberating upon their verdict urging upon them the importance of reaching a verdict. The objection to this instruction was general. Appellants did not object to the instruction because it was not in writing, and, indeed, there is nothing in the record to indicate that the instruction was oral. This instruction did not invade the province of the jury. It expressed no opinion on the merits of the case. The instruction comes within the rule announced by this court in St. Louis, I. M. & So. R. Co. v. Carter, 111 Ark. 284, as follows: “The rule is well settled in this State that the trial court may detail to the jury the ills attendant on a disagreement and the importance of coming to an agreement. The trial judge should not by threat or entreaty .attempt to influence the jury to reach a verdict. He should not by word or act intimate that they should arrive at a verdict which is not the result of their free and voluntary opinion, and which is not consistent with their conclusions. He may, however, warn them not to be stubborn and to lay aside all pride of opinion and to consult with each other and give due regard and weight to the opinion of their fellow jurors.” Jackson v. State, 94 Ark. 169-175. See also 1 Blashfield’s Instructions to Juries, ch. 21, p. 533, where cases-to this effect in other jurisdictions are cited.

The judgment is correct, and is, therefore, affirmed.