Kirby v. Wooten

WOOD, J., (after stating the facts). The court was correct in excluding the testimony of Kirby concerning his alleged transactions with Maynard, and the statements alleged to have been made by Maynard to him concerning his account. But after excluding' this testimony there was testimony making it an issue, for the jury to determine whether or not the estate of Maynard was indebted to Kirby, and the amount, if any, of such indebtedness. Wooten, who was present when the note and mortgage were executed by Kirby to Maynard, testified that he heard Maynard tell Kirby that he would give him credits later on in the fall in settlement for what was owing to him (Kirby) and directing Kirby to make up a list. This was competent'testimony, and tended to show that at the time the note and mortgage were executed Maynard acknowledged that Kirby had an unsettled account against him for which Kirby was entitled to credit. Then the testimony of other witnesses tended to prove that Kirby, as late as the spring of 1915, had furnished Maynard hay and a mule. Even' though Maynard’s estate may not have been indebted to Kirby in the full amount of the account claimed by him, the above testimony tended to prove that he was indebted to him in some amount. The peremptory instruction by the court deprived the appellant of the right to have the jury determine whether or not the Maynard estate was indebted to him in any sum. As to whether or not the estate of Maynard was indebted to Kirby, and if so, the amount of such indebtedness, were issues, under the evidence, to be submitted to the jury under proper instructions. The court, therefore, erred in its ruling directing the jury to return a verdict in favor of the appellee. On appeal from a directed verdict, the evidence must be given its strongest probative value in favor of the party against wbom the verdict is directed, and if there is any evidence tending to establish an issue in his favor, the court should allow the issue to go to the jury. Williams v. St. Louis & Sam Francisco Rd. Co., 103 Ark. 401; Barrentine v. The Henry Wrape Co., 120 Ark. 206. For the error indicated, the judgment is reversed and the cause is remanded for a new trial.