Childs v. Motor Wheel Corp.

Humphreys, J. This case is here a second time. On the first, appeal the judgment was reversed, and the cause remanded for a new trial upon the issues joined as to the terms of the oral contract entered into between the parties on the 20th day of August, 1920, the alleged breach thereof, and the alleged damages growing out of said breach. Motor Wheel Corporation v. Childs, 153 Ark. 178. The original written pleadings did not present these issues, but testimony was introduced, without objection, responsive to said issues, which constituted an election to treat the pleadings as amended to present said issues. Upon remand the pleadings were amended in writing so as to present said issues, after which the cause proceeded to a hearing. Over the objection of appellant, the court excluded the written contract entered into between the parties of date July 31,1920, and his testimony to the effect that the written contract expressed the terms of the oral contract except as to the place of inspection. With the exception of said written contract, the testimony introduced on the retrial of the case was, in substance, the same as that introduced in the first trial. For the statement thereof reference is made to the case of Motor Wheel Corporation v. Childs, supra. At the. conclusion of the testimony the court instructed a verdict for the appellant, and rendered a judgment in accordance therewith, from which is this appeal. Appellant contends that the judgment should be reversed for two reasons; first, because the trial court refused to allow him to introduce the written contract of date July 31; and second, because he peremptorily, instructed a verdict. Appellant offered to testify that the oral' contract of August 20 embraced, by reference and adoption, the terms contained in the written contract entered into by and between them on July 31, 1920, except as to the places of inspection of the materials sold and purchased. As the proffered testimony tended to show the terms and subject-matter of the oral contract, the court committed reversible error in excluding it from the jury. This testimony formed the foundation of appellant’s case, and should have been admitted. (2) The trial court also erred in'taking the case from the jury, for the decision of the court on the first appeal became the law of this case. In rendering the opinion on the‘former appeal of the case the court said: “It was a question for the jury to determine what the contract made in Memphis on August 19 was — whether it amounted, as contended by appellee, to an agreement of sale according to the terms specified in the original written contract, or whether it was merely a contract, as contended by appellant, for the acceptance of such amount of material as appellee should see fit to ship. “This state of the proof makes it a question for the jury to determine what the extent of the contract was that was entered into between the parties on the occasion named, and the case should have gone to the jury solely on that question and on the question of the alleged breach thereof.” For the errors indicated the judgment is reversed, and the cause is remanded for a new trial.