103 Ark. 219 | Ark. | 1912
(after stating the facts). 1. The uncontradicted evidence shows that appellant agreed to pay appellee the advances that it had made to Whitney up to the 5th of July. The president of the appellant testified that he was under the impression that the amount at that time was $1,330; but he stated that he would have recognized “the same obligation if the debt had been $1,650.55.”
Taking his whole testimony together, it shows that while he thought the amount was $1,330, yet, if in fact it amounted to $1,650.55, his agreement to pay covered it. The undisputed evidence shows, and the appellant concedes, that the amount paid by the appellee on the time checks of Whitney up to July 5 exceeded $1,300. The court was correct, therefore, in telling the jury that they should find for the plaintiff.
The only question about which theré was a conflict in the evidence was as to whether or not the promise of appellant embraced the amounts that were paid by the appellee between July 5 and July 12, when appellant wrote to appellee the letter introduced in evidence. The court, in its instruction, properly submitted this question to the jury, and the evidence was sufficient to sustain the finding of the jury on that issue.
The appellant could not have been prejudiced by the statement that “if you find that it was abrogated between the 1st and the 5th of July the amount is $73.09,” even though the amount stated was inaccurate, because the verdict shows that the jury did not find that appellant gave notice that it would not pay advances made by appellee after July 5. On the contrary, the jury found that the promise to pay included all advances made to July 12.
2. On account of what took place between Whitney, the appellee, and appellant’s president (Robinson) in the bank before appellee had made any advances to Whitney, appellant Robinson recognized that he was under moral obligation to see that the appellee was paid. He said he did not pay the money to Whitney, instead of the bank, because of such obligation.
Appellant had a contract to do certain work, and sublet a portion of that work to Whitney. Appellant was the beneficiary of the work done by Whitney, received pay for it, and in turn was liable to Whitney for the work done by him. Whitney could not do the work unless certain advances were made to him, which appellee agreed to make, and appellant knew that these advances were made to Whitney with the expectation that appellant would pay to appellee such advances out of the money that it was obligated to pay Whitney for the work. What took place in the bank between these parties was tantamount to a representation upon the part of appellant that it would have certain money in its hands belonging to Whitney with which it would reimburse appellee any amounts that it advanced to Whitney on his time checks in doing the dredging work. The statute of frauds has no application under such circumstances. United Walnut Co. v. Courtney, 96 Ark. 46.
3. The court did not err in excluding what appellant offered to prove by witness W. S. Allen. Whether or not appellant was indebted to Whitney or Whitney to appellant was wholly immaterial to the issue in this case. Such testimony would have introduced collateral issues, and was incompetent.
4. The books of the bank were not essential to the maintenance of the appellee’s cause of action, and the court therefore did not err in refusing to require the appellee to produce its books. No motion was made to have the complaint show the account of appellee as disclosed by its books. Therefore, the court properly exercised its discretion in refusing the request of appellant to have appellee’s books produced. Cauthron Lumber Co. v. Hall, 76 Ark. 1.
We find no error in the proceedings. The judgment is therefore affirmed.