Chicago, Rock Island & Pacific Ry. Co. v. Burkholder

Wood, J., (after stating the facts). (1) The court did not err in refusing appellant’s prayer for a peremptory instruction. The undisputed evidence shows that the sale of the garlic was made at the stipulated price of $200; that same was shipped in good condition over the appellant’s railway, and that when it arrived at New Orleans it was in a damaged condition, and that on account of such condition the vendee refused to accept and pay for the same. The above testimony was sufficient to warrant the court in submitting to the jury the issue as to whether of not the appellees were entitled to damages on account of the negligence of appellant as charged in appellee’s complaint. (2) Although the appellant objected to the introduction in evidence of the account of sales, it did not except to the ruling of the court in overruling its objection and in allowing the account of saies to be introduced in evidence. This court, in several cases, has sanctioned the following rule of practice: “If errors, or supposed errors, of any kind are committed by a court in its ruling during the trial of a ease by a jury, the appellate court can not review these rulings of the court unless two conditions concur: First, these rulings must have been objected to when made, and a bill of exceptions taken, or the point then saved, and the bill of exceptions taken during the term; and, secondly, a new trial must also have been asked and overruled, and objected to, and this noted on the record.” Dunnington v. Frick Company, 60 Ark. 250. See also Meisenheimer v. State, 73 Ark. 407; Mo. & North Ark. Ry. Co. v. Bratton, 85 Ark. 326. 330; Plumlee v. St. Louis Southwestern Ry. Co., 85 Ark. 488; Cammack v. Southwestern Fire Ins. Co., 88 Ark. 505; American Ins. Co. v. Haynie, 91 Ark. 43, 47; Halley v. State, 108 Ark. 224, 226. (3-4) The testimony would be competent, any way, for the original account sales of a commission merchant with his customer is admissible in evidence. The testimony here shows that the" three requisites to the admission of such evidence were shown. The witness testified that he was the secretary and that the account sales was the original, and rendered immediately after the sale was made. See Elliott on Evidence, § § 455, 458. The testimony as to this sale, made by a regular commission merchant in due course of business, tending to show that appellees received as net proceeds from such sale only $50.34, was evidence, which, taken in connection with the other testimony on behalf of appellees, tended to prove that appellees, on account of the negligence of appellant in failing to deliver 'the garlic in good condition, were damaged in the amount of the verdict. For the jury might have found from the testimony in the record that if the garlic had been delivered in good condition the vendee would have accepted and paid for same. Thus, the measure of appellee’s damage is the difference between what they would have received under the contract of sale and what they actually did receive by reason of the sale of the goods in their damaged condition through their commission merchant. There are no errors in the record and the judgment is therefore affirmed.