Mine LaMotte Lead & Smelting Co. v. Consolidated Anthracite Coal Co.

Hart, J., (after stating the facts.) Counsel for appellant assigns as error that he was not allowed to open and close the argument, and asked for a reversal on that account. In this he is wrong. “The plaintiff has the right to open and conclude the argument whenever it devolves upon him to prove any issue in the case to maintain his action.” Bertrand v. Taylor, 32 Ark. 470; Prescott & N. W. Ry. Co. v. Brown, 74 Ark. 607. Appellant insists that it was prejudicial error to permit the witness Daugherty and Howard to testify to conversations had by them as to the rental value of the drill. We can see no error in this. Daugherty was president, and Howard was superintendent, of the appellant company at the time the conversation was had, and the conversation was to the effect that they considered ten dollars per day while in use a fair rental for the drill. Corporations can only act through agents, and this conversation is only related by them by way of inducement in ■stating the matters that led up to the making of the contract. The material part of their testimony is that, acting for the company, they did make an oral contract renting the drill for ten dollars per day while in use. Again, appellant claims that there was prejudice in permitting Dunlap to relate the conversation had between himself and Daugherty before the contract of rental was entered into. This conversation was to the effect that Daugherty, in the presence of Albers, told Dunlap, who was the treasurer of appellee company, that appellant company had a diamond drill that they soon would be through with, and said that they would rent it for $10 per day for every day while in use. This testimony on the part of Dunlap was immaterial, for Daugherty does not deny the conversation, and testifies that he did rent the drill for $10 per day for each day while in use, and the contract of rental was a verbal one. Appellant insists that the court erred in permitting the appellee to prove by the witness Jackman the rental value of the drill. The transcript shows that appellant had already asked this same question of the witness George Howárd on cross-examination; and appellant can not base prejudicial errors upon matters first brought out by it. Appellant claims that the court erred in not giving instruction number one asked by it. This instruction is set out in the abstract. The instructions of the court were very voluminous, and counsel for appellant .has only set out in his abstract what he considers the substance of the instructions. This is not sufficient. The -instructions must be set out in full,' otherwise the court is presumed to have covered the matters objected to in the instructions given. Carpenter v. Hammer, 75 Ark. 349, and cases cited; Jacks v. Reeves, 78 Ark. 428. Affirmed.