Warden v. Middleton

Hart, J., (after stating the facts): It is first contended by counsel for appellees that the judgment should be affirmed because the hill of exceptions does not affirmatively show that it contains all of the evidence. The bill of exceptions recites the following: “The plaintiffs to sustain their cause, introduced the following evidence: (Then follows the testimony of plaintiffs’ witnesses.)” It then recites: “The plaintiffs here close their case, and the defendants, to sustain the issue on their part, introduced the following evidence;” and, after setting out the testimony of the witnesses for the defendant, the bill of exceptions contains this statement: “The defendants here announced that they had closed their evidence in this case; whereupon plaintiffs introduced the following witnesses in rebuttal.” Then follows the testimony of two witnesses for the plaintiffs. The bill of exceptions then recites: “The plaintiffs have announced that they had closed their evidence in this cause, and the court gave the. following instructions, numbered from 1 to 7. ’ ’ The bill of exceptions then recites that the defendants offered the following instructions which were refused by the court. The refused instructions are then set out. Thus, it will be seen the bill of exceptions sets out the evidence that was introduced by the parties, and follows this by the instructions given and refused. We are of the opinion that it shows inferentially and by natural implication from the language used, that it contains all the evidence; and this is sufficient. Mitchell v. Young, 80 Ark. 441; Overman v. State, 49 Ark. 364; Thomas v. Hinkle, 35 Ark. 450; Leggett v. Grimmet, 36 Ark. 496. The court, at the request of appellees, gave the following instruction: “If you find from a preponderance of the evidence that by false, fraudulent statements made by plaintiff to the defendant that the defendant relying upon said alleged statements so made by the plaintiff was induced to purchase from the plaintiff the jack in question, executing his note therefor for a stipulated sum, and you find from a preponderance of the evidence that said alleged statements were made by plaintiff to defendant, and were relied upon as true when in truth they were false, and the defendant was injured thereby, then you will find the issues for the defendant. ’ ’ Counsel for appellants insist that the court erred in giving this instruction, and also erred in refusing to give certain instructions asked by them on the question of warranty; but we can not agree with them in their contention. In the case of Winter v. Bandel, 30 Ark. 362, the court, in discussing a similar contention in regard to the false and fraudulent warranty of certain insolvent notes, said: “Where there is a false warranty which contains elements of fraud and deceit in it, the party has his election to affirm the contract and sne upon the breach of warranty, or repudiate it, offer a return of all which was received under it, and to rescind and sue for damages. Chitty on Contracts, 366 and 369; Chitty’s Pls. 137 (margin) ; Dougl. 21; 2 East. 446; 2 Starkie, 162. In this case there was an offer to rescind, and if there was fraud, the plaintiffs below thereby placed themselves in position to sue for full damages, regardless of the value of the insolvent notes. See also Plant v. Condit, 22 Ark. 454; Weed v. Dyer, 53 Ark. 159. In the present ease, appellants offered to return the jack and rescind the contract; and if there was fraud practiced upon them by appellees, they have placed themselves in a position to sue for full damages. This issue was submitted to the jury in the instructions given. At the request of appellees, the court also gave the following instruction: “As to Inez Warden, if you find that she was not interested in the purchase of the jack, but was merely an accommodation security on said note, then she could not be bound on said note, and it could only bind him, if you should find him liable.” Counsel for appellants excepted to the giving of this instruction for the reason that there was no evidence tending to show that appellant, Inez Warden, was interested in the purchase of said jack. ' In this position, we think he is correct. It will be noted that the instruction was given at the request of appellees. The only téstimony given on this subject is that of the appellant, Hal Warden, and his testimony was not objected to by appellees. He testified that his wife was not interested in the purchase of the jack, and only signed the note' given for its purchase price as an accommodation to himself. There is nothing in the record tending to contradict his testimony in this regard. Therefore, the undisputed evidence shows that she was a married woman at the time she signed the note, and that it was not made for her debt nor about a matter for which she could bind herself personally. Hardin v. Jessie, 103 Ark. 246; McCarthy v. Peoples’ Savings Bank, 156 S. W. 1023, 108 Ark. 151. In the case of Hardin v. Jessie, supra, the court held: “When a married woman has only limited powers of contract, as, for example, only in connection with her separate estate or business, the burden of proof, in an action seeking to enforce liability against her, is upon the plaintiff to show that the contract was one which she had power to make.” It follows that the judgment against Hal YVarden will be affirmed, and the judgment against Inez Warden will be reversed; and the case having been fully developed, the cause of action against her will be dismissed.