112 CASES IN TEE SUPREME COURT [23 Ark. Hirsch & Co. vs. Patterson et al. [JANUARY HIRSCH & CO. VS. PATTERSON ET AL. The suppression of a portion of a deposition before the parties go into trial, or the issues are made up, is not cause for a new trial on the ground of surprise. Where the portion of a deposition suppressed could have been of no benefit to the party offering to read it, if it had been admitted, its suppression is no cause for granting a new trial. Where it was the appropriate province of a jury to determine a matter of fact before them, and their conclusion is not without evidence to sustain it, this court will not disturb their finding upon the matter. Where jugclment is for an excessive amount, it will be af firmed, tinder the rule, on a remittitur of the excess; otherwise it will be reversed. Appeal from Independence Circuit Court. Hon. WILLIAM C. BEVENS, Circuit Judge.
23 Ark.i OF THE STATE OF ARKANSAS. 113 TER M, 1861.1 Hirsch & Co. vs. Patterson et al. STILLWELL & WOODRUFF, for appellants. ROSE, for appellees. Mr. Chief Justice ENGLISH delivered the opinion of the court. Patterson, Marshall & Co., of Memphis, sued Hirsch & Co., of Batesville on a note for $512.73, bearing date April 3d, 1857, and due at sixty days. The case was tried by a jury upon issues to the pleas of nil debet, payment, and set-of f ; verdict and judgment in favor of plaintif fs for $308.49, balance of debt, and $37 damages. The defendants moved for a new trial, which was refused, and they excepted, and appealed. Before the trial, a portion of the deposition of W. E. Milton, taken and published by appellants, was suppressed, on the motion cf the appellees, and this is made one of the grounds of the motion for a new trial. Passing over the fact that the motion to suppress was made and sustained before the parties went into the trial, or the issues were made up, and the decision of the court was not, therefore, matter of surprise to appellants ; and passing over the further objection that the deponent stated his impressions, without stating their sources, or the facts from which they were derived ; it is manifest that if the portion of the deposition which was suppressed had been read to the jury, it could have been of no benefit to the appellants. If it tended to prove anything material, it was that appellants were not entitled to a credit which they in fact received. Upon the trial, appellants produced an account current between the parties, in the handwriting of one of the appellees, commencing November 6th, 1856, and ending December 11th, 1857, covering an item, for which the note sued on is supposed to have been given and showing a. balance in favor of appel-lees of $308.49, the amount of debt for which the jury rendered their verdict. In this account the appellants are credited with proceeds of their draft in favor of appellees, on George Philler,
114 CASES IN THE SUPREME COURT [23 Ark. Hirsch & Co. vs. Patterson et al. [ JANUARY $453, and they insist that they should have been credited with $478.50, the full amount of the draft. The draft was drawn 24th August, 1857, at sixty days, and on the day it was drawn appellees gave appellants a receipt for it, stating that the proceeds of the draft were placed to their credit. The appellants are credited in the account current with proceeds of draft, $453, on the day it was drawn, and sixty days before its maturity, and the jury must have concluded that the draft was cashed at that time. It was payable in bank. This was a matter for the jury upon the facts before them, and we shall not disturb their finding on that point. The appellants also produced in evidence an account between the parties, in the handwriting of one of the appellees, composed of a number of items, commencing November 7th, 1856, and ending 18th February, 1857, footed up balance against appellants $724,69, under which is written a receipt, as follows : Rec'd payment by note at sixty days, from February 18th, 1857. PATTERSON, MARSHALL & CO. The appellants also produced, and read in evidence, the following instrument, which they prove to be in the handwriting of one of the appellees : $724.69. MEMPHIS, 18th Feb'y, 1857. Sixty days after date we promise to pay to Patterson, Mar-shall & Co., or order, seven hundred and twenty-four 69-100 dollars, for value received, payable at Southern Bank of Tennessee, iv Memphis. The items which compose the account last referred to, extending from November 7th, 1856, to February 18th, 1857, are also embraced in the account first referred to, commencing November 7th, 1856, and ending December 11th, 1857, the debits of which are footed up $2,639.71. Appellants insist -that, inasmuch as the items of the account first rendered, are charged in the account last rendered, they should have been credited with the note for $724.69, by which the account first rendered appears to have been closed ; but that they were not so credited.
23 Ark.] OF THE STATE OF ARKANSAS. 115 TERM, 1861 It does not appear that the note for $724.69, produced in evidence by appellants, was ever signed by them, or was in the hands of appellees after it was written. It is probable that the jury concluded from the evidence that the note was sent to the appellants, by the appellees, with the first account for their signature, but that it was never signed and eturned, and hence the second account was made out, embracing the items included in the first. There was certainly some ground for the jury so to conclude. The appellants proved that the appellees collected for them, of an insurance company of Philadelphia, $1,645, and credited them, in the account last rendered, with but $1,612.90 of the sum so collected, and this error, it seems, went into the verdict of the j ury. If the appellees will enter a remittitur for $32.10, excess of finding, the judgment will be af firmed, under the rule; otherwise it must be reversed, and a new trial granted.
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.