Moore v. Moss

Wood, J., (after stating the facts). Appellee seeks to recover under a contract which he alleges was made with the appellants on the 20th of October, 1909, and he was permitted to introduce letters concerning a contract that was made with J. L. Moore, who had since died. Under that contract, appellee was to sell the land at $12 per acre 'and receive 5 per cent commission of the purchase price. Appellee himself admits in his testimony that this contract “did not materialize.” These letters 'bore date from some time in October, 1907, up to as late as December 26,1908, the last letter being some ten months before the present contract is alleged to have been entered into. Under this last contract appellee alleged that he was to secure a purchaser for the lands, and did succeed in selling the same at $13 per acre. These letters were well calculated to mislead the jury and were highly prejudicial to appellants. The contract for the sale of lands entered into in 1907 or 1908 had nothing to do with’the contract sued on. The issue was sharply drawn as to whether or not appellee had procured Porter to purchase the lands under the contract upon which he sued, and the inquiry should have been directed to that. The fact that appellee may have interested Porter in the lands in 1907 or 1908, under contract, expecting to sell the lands at that time, which the letters tended to prove, did not show or tend to show that the appellee procured Porter to purchase the lands under the contract on which he sued. The contract with J. L. Moore was an entirely different contract from the one in suit, with different parties, and the correspondence had with Porter tending to show what appellee had done under that contract was wholly incompetent under the issues joined in the present suit. Appellee testified that he brought Porter and the Moores together by correspondence. These incompetent letters constituted the correspondence to which he refers, as there were no other letters after the date of the contract on which he sued introduced in evidence tending to prove that he brought the Moores and P-orter together under .this contract. The -instructions, in which the court refers to the correspondence and permits the jury to -consider the letters in -determining the is-sue -as to whether or not appellee, by correspondence with Porter, interested -him in -these l-a-nds -and procured him as a purchaser for the same, were li-kewis-e prejudicial for the reason that they were abstract, -there being no testimony upon which to predicate the same. Except in the particulars herein mentioned, th-e instructions of the -court -conform substantially to the law -as has been often announced by this court. Scott v. Patterson, 53 Ark. 52; Taylor v. Godbold, 76 Ark. 395; Pinkerton v. Hudson, 87 Ark. 506; Branch v. Moore, 84 Ark. 462; Stiewel v. Lally, 89 Ark. 195; Blumenthal v. Bridges, 91 Ark. 212; Poston v. Hall, 97 Ark. 23. If is unnecessary to reiterate the principles announced in thes-e decisions. Appellants insist that most of the other prayers for instructions besides the ones above -considered w-ere ab-tract, -b-ut inasmu-ch a? the -case must be reversed for the error-s indicated, -and as different facts m-ay he developed on another trial, we will not pass upon the question as to whether -or not other instructions than those mentioned above were abstract and prejudicial. For the error indicated, the judgment i-s reversed -and the -cause remanded for a new trial.