Sparks v. Forrest

Hart, J. (after stating the facts.) Appellant contends that the court erred in submitting to the jury the contract between herself and J. A. Rice for the purpose of comparing her signature attached to it with the signature to the contract in suit. There was no prejudicial error in this action of the court. After this was done, appellant took the stand in her own behalf, and did not deny the genuineness of her signature to the Rice contract. She certainly knew whether or not it was her handwriting. Hence she could -not be prejudiced by the act of using her signature to that contract for the purpose of comparison with the signature to the contract in suit. Clinton v. Estes, 20 Ark. 216; Miller v. Jones, 32 Ark. 337. Moreover, appellant does not deny that she signed the contract in controversy. She admits that the signature looks like her handwriting, and says that, if she signed it, she did not know what she was signing. Evidence tending to prove an undisputed fact in the case cannot be prejudicial. Standard Life & Accident Insurance Co. v. Schmaltz, 66 Ark. 588; Maxey v. State, 76 Ark. 276. Appellant insists that the court erred in giving the following instruction: “The jury are instructed that the fact that the defendant had employed other counsel than plaintiff would not excuse defendant from the performance of her contract with plaintiff. If you find by a preponderance of the evidence that defendant entered into and signed a written contract and agreement to pay plaintiff a stipulated sum for his services, and plaintiff gave his services, he would be entitled to recover under the contract.” Counsel for the appellant contends that this instruction left open for the consideration of the jury any character of service, and that by it, together with the refusal to admit the testimony of L. H. McGill and W. A. Dickson, the court took from the jury the defense of partial performance of the contract and the fair value of said partial services. We fail to perceive how the giving of this instruction or the refusal to admit the testimony referred to could affect the rights of appellant. Appellee sued upon a written contract. The defense interposed was that appellant did not sign the contract, or that, if she did sign it, her signature was procured by fraud. Appellee based his rights solely upon the written contract. The written contract was the foundation of his action. He did not claim anything except by its terms. The question of part performance was therefore foreign to the issues in the case. The question of whether or not appellant executed the contract, and, if so, whether or not her signature was procured by fraud, was submitted to the jury under appropriate instructions, which were not objected to by appellant, and it is the peculiar province of the jury to pass upon the weight of the evidence. . Affirmed.