818 CLARK V. FICKLER. [168 CLARIC V. FICKLER. (Minion delivered 11/1a:V- 4, 1925: . , APPEAL , AND ERROR--CONFLICTING INSTRUCTIONS.— Whei:e appellant requested an instruction which was too favorable , to himself, ,he cannOt Comr;lain th'at correct inAructions given' at , ppeilee's ' I; • inStaiiee Were in' Conflict therewith.' 2. SALES—LORS OF WEIGHT or OTTO/sr ArrEfi ntuvixv—The seller' of •.cotton which was marked "weight guaranteed" was not liable for , loss of weight aecruing after delivery and acceptance due to exposure to the weather. 3. SALES—JURY QUESTION. ID an action to recover for deficiency in weights of cotton at compreSs under guaranty of the WeightS in a contract sale, whether the loss in weight accrued before IA . after the sale was properly submitted to tile jury, . 4-APPEAL ANp ERROR CONCLUSIVENESS OF VERDICT.—A. verdict of the , jury is conclusive on a question of fact as to wIlich the evidence is Conflicting. Appeal from. Columbia Circuit Court; L. S. , Britt, Judge; affirmed. T. J. Gaughav, J. E:EGaughan, J. T. Siff ord and E. E'. Godwin, for appellant. McKay & Smith, for appellee. : SMITH, J. Appellant purchased from appellee 213 bales of cotton at 3614 cents per pound, f. o. b. cats at
ARK.], CLAR,K v. PICKLER. 819 Taylor, Arkansas ; on: October.' 9,1919. ,.The..cotton; at the time 'of the, sale, was.located'in the gin yard, where had: been ginned, :200 _yards from ,the railroad . station., platform,- from which most of the, cotton was loaded the ears.. The cotton had ,been weighed at the . gin .o.r the gin .yard prior to the sale, ,and the invoice e2ecuted., by , appellee . to,Appellant at the time of . the sale showed, the , weight 6r the , cotton.to be 108,3,5,pounds. The 'ea,. ton had ,. been purchased, by appellee on,' , S . • , . epteMber 20 and dates subsequent' there-6. • • As soon as the sale was made appellee employed J. W: Blackman to deliver the cotton at the railroad cotton platform at Taylor, Arkansas. Blackthau begun haull, nig the cotton on the . day 'of its purchase and finished hauling' if' on the- llth'n'f October. Four df the' bills , Of-lading for 113 bales of cotton were issued by the railroad. company on October 14, and four other bills' Of 'lading for the remaining 110 bales' of cotton were issned October 17, which:was eight day§ after the sale of the cotton. : The invoice of the cotton, showing the number of bales and the weights thereof; Wits executed . by appellee' and delivered by him to L. A. King, 'the agent of appel-, lant; who 'purchased the cotton for appellant : , and at.the' same time King gave his personal check to appellee in payment of the cotton at the price which had been agreed upon: . .King then drew a draft upon appellant for the: same amount. There , was stainped onr the invoice the: words "Weights guaranteed," 'and . the' invoice' ,:vVaA signed by appellee. - • . • ' '1 The recerd is silent, as : to the-date the' Cotton' was.: transported by the railroad company from Taylor;! Ark-4. ansas, :to the compress •at Hope, Arkansas.. ' However;,: before, .the cotton Was shipped from Taylor : two bales, were stolen, and only' 211 . bales .were deliVered . at . the Hope compress. This is a suit for loss in weight in the cottony but, appellant gave appellee credit for the two bales stolen;, and accepts the gin weights thereof as being correct:
820 CLARK V. PICKLER. • [168 When the cotton reached the Hope compress it WaS muddy and very wet. The cotton was weighed at the compress at the time of its arrival, and weighed 111,723 pounds. Later the cotton was "reconditioned," that is, the damaged, cotton was removed from the bales and, it Was again weighed, and its weight then was 106,962 pounds. Appellant, by 'this action, seeks to recover from appellee the difference in the 'amount of cotton as weighed at Taylor and its weight after it was reconditioned, at the price paid. Appellant offered testimony to the effect that , the meaning of the words . "weights , guaranteed" meant that the weight of the cotton at the compress Should govern, and that any shortage • which might then exist . would be refunded. . :APpellee does not question the meaning of the words "weights guaranteed," and concedes that the compress weights govern, but he contends that he is not responsible for. the loss of weights sustained, for the reason that the cotton was damaged by being exposed to the weather, and that it was this exposure which made it necessary to Tecondition the cotton with the resulting loss in weight. . At the request of appellant the cotirt gave an instruction numbered . 1,. reading as follows : ." The jury are' instructed that if you believe from the evidence that. plaintiff, Charles Clark, bought from the defendant, Geo. T. Pickler, 211 bales of cotton. under a contract between said Clark and Pickler that Pickler would guarantee the weights, and that the words, weights guaranteed' meant the weights according to the 'turnout' of the compress to which said cotton should be shipped, and that such cotton was shipped to the compress at Hope, Arkansas, 'and that the 'turnout' of said compress of such cotton was less than the weights of the cotton on which Clark had made payment, then your verdict will be for the plaintiff for the amount of such difference
ARK.] CLARK V. PICKLER. • 821 at'361/4c .per pound, with six per cent. interest per annum from the date of payment for the cotton." It is insisted that the ipstructions given on behalf. of appellee are in conflict with this instruction, and that the judgment in appellee's favor should therefore be reversed. The instructions are in conflict, and this was, of course, error, but it is an error of which appellant cannot complain, for the reason that instruction numbered 1 is more favorable to appellant than it should have been; and thoSe given on behalf of appellee correctly declare the law. It will be observed that, under the testimony , set out above, the instruction in effect directed the jury to • return a verdict for • appellant for the amount of the loss in weight of the cotton, as this loss of weight is undisputed, and the meaning of the words "weights guaranteed" is unquestioned. But the instruction leaves out of account the question of the cause of this loss in weight, and this was the question submitted to the jury in the instructions given at the request of appellee. These instructions were to the effect that, if the cotton was paid for and delivered at the railroad platform and bills of lading therefor obtained by apfoellee from the railroad company, there was a delivery and acceptance of the cotton, and on the question of the subsequent damage thereto the court charged the jury as follows : "You are instructed that if you find from the evi-- dence that the cotton was , delivered to the plaintiff at Taylor, Arkansas, in good condition, and that after-- wards it was damaged and by reason thereof it lost in weight, as shown by the outturn of the Hope compress, you should find for the defendant. "You are instructed that the defendant is not liable to the plaintiff for loss in weight which resulted from damages sustained by the cotton after it was delivered to and accepted by the plaintiff. And if you find from the evidence that, after such delivery and acceptance, the
822 CLARK V. PICKLER. • [168 cotton was damaged by,reason of exposure to the weather,' and for' that . reasdn the damaged, cotton was .remoyed by:the Hope compress, , thereby. resulting in a loss of weight, then , it will .be your duty to find for ,the defendant." We think these instructions correctly declare the law, and that, there was no error in giving them, eyen though they,conpict with instruction numbered,1 given at the request.of appellant, because appellee was not respon; sible, for the damage to , the cotton after , the, .d,ellyery thereof at the .railroad platform, fhere being nothing in , the contract of sale making him liable for such damage. The instructions submitted ,the question of fa.c when the: damage , to , the cotter' accrued, r and thi,s,was.‘a. proper question ,to submit ' tp the jury., ; The„testimony on , this issue of fact wascontliqing,w On this question; the testimony .031 behalf of appellant wasi:, to the effect that, in the fall, of, 1919, the rainfall was very heavy, and the . cotton had . been . damaged before was sold,. The, testimony , on behalf of .appelle , e , wap,:;to ii of 1919 was , unusually the effect that, while the fail the. heavy , rains , which fell . during , that season ,did _not begin until after the , sale of the ;cotton, andjhat. prior thereto there had been oniy,showers, and that no rain of; any consequence had , fallen,.prior to October 9 , , t l ?, „ claT; of the sale. ; : jury's verdict is conclusive on the question .of fact involved, and,, as no , prejudicial error was comm : i tted in the •instructions, the. judgment „of . the court below,;its:f affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.