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caught between them and thus became fastened, so that, instead of permitting the shaft to revolve beneath it, it was whirled around the shaft, making it dangerous to those near it.

was the proximate cause of the injury, but they earnestly contend that it was due to the defendant's negligence in permitting the two pulleys on the shaft to be placed so close together, with the set screws protrud[2] It is contended by counsel for defend- ing from one of them, thereby catching the ant that, if these conditions of the machine belt between them and causing the upper and pulleys were defective, it was attributa- end of it to become fixed, and thus to wrap The undisputed evidence ble to the negligence of the plaintiff rather around the shaft. than to that of the defendant. They urge shows, however, that the pulleys and set that plaintiff was foreman at the factory, screws could be readily seen from the floor. and as such foreman it was his duty to dis- They were plainly open to observation, and cover defects in the machinery, and to reme- they could more certainly be seen when one dy such as were of an ordinary character, was within a foot of them, as plaintiff had and to report those which were of a nature been upon a number of occasions, and was that he could not remedy; and that he fail- upon the occasion of this injury. The expert ed to perform this duty. The plaintiff, how-witness introduced by plaintiff testified that ever, testified that he was not a machinist; he could not conceive of any one going withand it might be inferred from his testimony in 12 inches of this shaft and not being able that it was not within the province of his duty to make these repairs, but that this was the duty of the manager. If therefore this duty was imposed upon the manager, and plaintiff was injured through the failure on the part of the manager to exercise ordinary care to perform that duty, such negligence of the manager would be the negligence of the defendant for which it would be liable for resultant injuries to plaintiff, regardless of the grade of his service as foreman. Bryant Lumber Co. v. Stastney, 87 Ark. 321, 112 S. W. 740; Oak Leaf Mill Co. v. Smith, 98 Ark. 34, 135 S. W. 333.

While

to see the set screws and the position of the pulleys. He said he was bound to see them. The plaintiff had placed this belt upon the pulley at this place under the same conditions for at least six times prior to the accident. Under this testimony, therefore, we are compelled to say that the plaintiff must have seen the smaller pulley and set screws upon the shaft and the condition of the machinery. He had been warned of the danger of putting the belt upon this pulley while the machinery was in motion, and himself testified that he appreciated the dangers arising therefrom. In fact, he had been [3] But in the view which we have taken ordered not to place the belt upon the pulleys of this case, we do not find it necessary to while the machinery was in motion. pass upon the question as to whether or not he contends that this order was abrogated the testimony was sufficient to warrant a by its violation, nevertheless it shows that finding that the injury was due to an act of he fully appreciated the danger of performing If the injury was negligence upon the part of the defendant. this duty in this way. We are of the opinion that the testimony due to these defects of which he now comclearly shows that the injury which plaintiff plains, the testimony shows that they were received was due to one of the risks which open and obvious, and that he fully apprehe assumed by reason of his employment.ciated the dangers arising therefrom. According to his own testimony, the plain-risk of the danger arising from putting the tiff knew of any defect which there was in belt upon the pulley under these conditions, the cracker mill and in the platform on which while the machinery was in motion, was one it stood. With this knowledge he had work- which he necessarily assumed. ed at the machine while this condition existed for probably more than a year prior to the accident. While he called the attention of the manager to this defect, and the manager promised to repair it, still his testimony clearly shows that he continued to work at the mill without any reliance upon that promise, and without any complaint of the failure to repair it.

The

The injury which plaintiff received is a very severe one, but under his own testimony it is one for which under the law the defendant is not liable.

The judgment is, accordingly, affirmed.

JOHNSTON-REYNOLDS LAND CO. v.

FUQUA.

(Supreme Court of Arkansas. Nov. 25, 1912.) BROKERS (§ 88*)-COMMISSIONS-ACTIONSEVIDENCE-INSTRUCTIONS.

But we do not think that the defective condition of the cracker mill or the shaky condition of the platform were the proxi-1. mate cause of the injury. The testimony shows that the machine had not been in operation for some days, and was not choked at the time of the injury, and that the belt was placed upon the pulleys. The proximate cause of the injury was the whirling of the belt. Counsel for plaintiff concede that this

missions for procuring a purchaser of real esWhere, in an action by a broker for comtate, the undisputed evidence showed that the original contract of employment fixing a commission of a sum per acre was modified by an agreement that the owner, if making a sale to a prospective purchaser, would pay the broker a specified commission, and the broker testified

(Ark.

that he agreed to accept such commission, pro- | appellee granted to appellants the exclusive vided the sale was made in a day or two, and right to sell said property during the period that he was notified of it, and the owner testi- of four months thereafter, and that they fied that the agreement did not embrace any such condition, and that the broker informed should have as their commission all the purthe owner that the contract expired on May chase price over and above $7 per acre. Ap31st, while it did not expire until June 30th, pellants assert that within the time specified and that the owner, relying on the statement, gave to a third person an option to take effect they procured a purchaser for the land on June 1st, and that during June the third "ready, willing, and able" to purchase for the person elected to purchase, and the sale was price of $8.50 per acre, that they thereby consummated, instructions allowing the broker earned a profit or commission of $1.50 per to recover the specified sum if he agreed to allow the owner to sell to the prospective pur- acre, but that appellee had refused to conchaser, and the owner did not agree to make summate the sale and refused to pay the the sale in any specified time, and that the commission. broker was entitled to the full amount of commissions on a sale made by himself, if the agreement to accept the specified sum was limited to a sale made by the owner within a day or two and immediately reported to him, sufficiently submitted the issues and the broker obtaining a verdict for the specified sum could not complain.

[Ed. Note.-For other cases, see Brokers, Cent. Dig. 88 121-130; Dec. Dig. § 88.*]

The commission, according to the contention of appellants, amounted to the sum of $3,075.48, and this is the amount for which they prayed judgment. On the trial of the cause before a jury, a verdict was rendered in favor of the appellants for the sum of $500. They were not satisfied with the recovery of that amount, and have prosecuted an appeal to this court, and urge as 2. BROKERS (§ 44*)-COMMISSIONS-CONTRACT grounds for reversal that the court erred in -MODIFICATIONS. Where an owner gave to a broker the ex-giving one of the instructions requested by clusive right to sell real estate for a commis- appellee, and in refusing to give two of the sion, and thereafter the parties made a new instructions which they requested. agreement to the effect that the owner could sell and pay the broker a less commission, the original contract was modified, and the broker did not have the exclusive right to sell, and a sale subsequently made by the owner operated as a revocation of the broker's authority to sell, and the broker subsequently making a sale

could not recover the commission.

[Ed. Note.-For_other cases, see Brokers, Cent. Dig. § 45; Dec. Dig. § 44.*] 3. APPEAL AND ERROR (§ 1068*)-HARMLESS ERROR-ERRONEOUS INSTRUCTIONS.

The error in an instruction based entirely on a party's claim, and ignoring the contention of the adverse party, is not prejudicial to the adverse party obtaining a verdict in his favor. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4225-4228, 4230; Dec. Dig. 1068.*]

4. TRIAL (8 260*)-REFUSAL OF INSTRUCTIONS COVERED BY THE CHARGE GIVEN.

It is not error to refuse requested instructions covered by instructions fairly submitting the issues.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]

the month of April, 1911, the parties had an It is undisputed that about the middle of interview, in which appellee stated that he had a prospective purchaser for the land, and proposed to pay appellants a commission of $500 on the sale, if made, and that appellants agreed to accept that amount if the sale should be made by appellee' himself. There is, however, a dispute in the testimony insist that, when this proposal was made, as to one point in this interview: Appellants they agreed to accept the commission of $500, provided the sale was made in a day or two and that they be notified of it; whereas, appellee testified that the agreement did not lee testified that on the same occasion he askembrace any such condition as that. Appeled appellants to tell him when the contract expired; that he had lost his copy of the piration; and that appellants informed him contract, and did not know the date of exon that occasion that the contract expired on May 31, 1911. He further states that on the Munn an option on the place to take effect faith of that statement to him he gave to one on June 1st; that during the month of June Munn elected to purchase the place; and that he consummated the sale and conveyed the property to him. Appellants testified that on or about June 15th they negotiated a sale of the land to one Sanderson, and immediately requested appellee to furnish an McCULLOCH, C. J. Appellants instituted abstract of title, which he promised to do, this action in the circuit court of Miller coun- but failed to comply with his promise. On ty against appellee to recover the amount of June 30th, which was the last day of the commissions alleged to have been earned in contract, they closed the trade with Sanderthe sale of a tract of land in Miller county son, and entered into a written contract with owned by appellee. The tract of land in him for the sale of the property. It is upon question is composed of about 2,000 acres, a this sale that they seek to recover the compart of which is in cultivation, and on March mission. But the jury allowed them the sum 1, 1911, a written contract was entered into of $500 as a commission on the sale made between the parties to this action, whereby by appellee himself.

Appeal from Circuit Court, Miller County; Jacob M. Carter, Judge.

Action by the Johnston-Reynolds Land Company against Joe Fuqua. From a judgment granting partial relief, plaintiff appeals. Affirmed.

James D. Head, of Texarkana, for appellant. William H. Arnold, of Texarkana, for appellee.

Numerous instructions were given at the request of both sides.

[1] The following instruction was one of those given at the request of appellants: "If you find that plaintiffs did in April, 1911, agree to allow defendant to sell the land to the party with whom he was negotiating and did agree to accept $500 for their commissions, and that Fuqua did not, at the time, agree to make the sale in any specified time, and that plaintiffs did not lead Fuqua to believe and act upon the belief that their contract on said lands expired June 1st, then you are instructed that plaintiffs, if the contract of sale was made by Fuqua on or prior to June 30, 1911, are entitled to recover in the sum of $500." Now, this is the instruction upon which the jury evidently based the verdict in appellants' favor for the sum of $500. In following this instruction it is manifest that the jury found that appellants agreed to accept the commission of $500 without condition as to the time the sale should be made, and that they did not mislead appellee by any statement as to the date of the expiration of the contract.

Appellants also requested the court to give, among others, instructions numbered 4 and 5, which read as follows:

“(4) If you find that in April, 1911, Fuqua did advise plaintiffs that he had a prospective purchaser, and asked plaintiffs what they would charge as a commission if he sold the property himself and they agreed to charge $500, yet if you further find that Fuqua represented at the time that, if he made the sale, it would be made in a day or two, and he would immediately report it, and failed to either make the sale within a day or two, or, having made it, failed to report it to plaintiffs within a reasonable time, then, in either event plaintiffs would not be estopped from claiming commissions, if thereafter, they, in good faith, sold said property in accordance with the terms of the written contract to a responsible party, and within the time named in the contract.

The court gave No. 4 as requested, but refused to give No. 5. The effect of instruction No. 4 was to tell the jury that appellants would be entitled to the full amount of commissions on the sale made by themselves if the agreement to accept $500 was limited to a sale made by appellee within a day or two and immediately reported to them. So the jury necessarily found in returning a verdict in favor of appellants for only $500 that there was no such limitation of time upon the sale made by appellee himself.

[2] But in refused instruction No. 5 appellants asked the court to go further, and tell the jury that, even if appellee made a sale of the land within the time limited by the oral agreement and pursuant thereto, yet, if he failed to inform them of such sale, and suffered them to continue their efforts to effect a sale on the terms authorized by the original contract, they would be entitled to the full commission on the sale which they thereafter negotiated. This instruction was incorrect, and the court properly refused to give it. If a new agreement was made, to the effect that appellee should have the right to sell the land himself and pay appellants a commission of $500, this operated as a modification of the original contract, and it thereafter remained no longer as a contract giving appellants the "exclusive" right to sell the property, and a sale made thereafter by appellee pursuant to the agreement would operate as a revocation of appellants' authority. The effect of the instruction was to tell the jury that, unless appellee notified appellants of the sale thus made by himself, they could continue in their efforts to find a purchaser, and would be entitled to a commission if they found one "ready, willing, and able" to purchase the property. As the sale made by appellee under the terms of the modified agreement operated as a revocation of appellants' authority to sell, they were not entitled to notice, and could not claim a commission on the sale thereafter made by themselves. Hill v. Jebb, 55 Ark. 574, 18 S. W. 1047.

"(5) If you find that about April 15, 1911, plaintiffs did agree to accept in full payment [3] The next ground urged for reversal is from defendant the sum of $500 if defend- that the court erred in giving instruction No. ant sold to the party with whom he was then 1 on request of appellee, which reads as folnegotiating, yet, if you further find from the lows: "If you believe from the evidence that proof that defendant did make the sale with- defendant had forgotten the date of the exin the time contemplated and thereafter fail-piration of the contract with plaintiffs, and ed to promptly report such sale within the time stipulated (or, if no time was stipulated, then within a reasonable time thereafter), but withheld knowledge of such sale from plaintiffs, and requested or encouraged them or knowingly suffered them to continue their efforts to sell same, and as a result thereof plaintiffs did, within the time allowed by the contract, effect a sale, on the terms authorized by the contract, to a person who was able, ready and willing to take same on such terms, then plaintiffs are entitled to recover commissions as specified in the con

called upon the plaintiffs to inform him of the date, and that plaintiff Johnston informed him that the contract expired June 1, 1911, and that Fuqua relied upon said information, and, believing that to be true, sold the lands which had been listed with plaintiffs, after said date, then you will find for the defendant." It is contended that this instruction was incorrect and prejudicial to appellants, for the reason that it ignored their contention that appellee during the month of June encouraged them to continue in their efforts to make a sale. This in

contention that appellants misrepresented to him the date of the expiration of the contract, and thereby induced him to enter into an other contract for the sale of the property. The jury, however, found against appellee on that issue, otherwise they could not have found in favor of appellants for the $500. Therefore the instruction was not prejudicial, even if it is open to the objection urged by appellants that it ignored one of their contentions in the case.

[4] As to the other refused instructions requested by appellants, we think that they were not prejudicial, as the other instructions in the case fairly submitted the issues. We are of the opinion, upon the whole, that the case was properly submitted to the jury, and that the verdict should not be dis

turbed.

Judgment affirmed.

FRIEDMAN et al. v. SCHLEUTER et al. (Supreme Court of Arkansas. Nov. 25, 1912.) 1. FRAUDS, STATUTE OF (§ 49*)-CONTRACTS

TO BE PERFORMED WITHIN A YEAR.

A contract for the erection of a building, which may be performed within a year, is not prohibited by the statute of frauds, and may be oral.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 74; Dec. Dig. § 49.*] 2. CONTRACTS (§ 32*)-MEETING OF MINDSREDUCTION TO WRITING NECESSITY.

Where the terms of a contract are actually agreed on, the contract is effective, though it is expected that the contract shall be reduced to writing as evidence of the agreement.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. § 159; Dec. Dig. § 32.*] 3. CONTRACTS (§ 32*)-BUILDING CONTRACTS -AGREEMENT OF PARTIES-VALIDITY.

Where a contract for the construction of a building was orally agreed on, including the time for completion of the building and damages per day for any delay, the mere fact that the contract was to be reduced to writing as evidence of its terms did not prevent it from being effective from the date of the agreement of the parties.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. § 159; Dec. Dig. § 32.*]

4. CONTRACTS (§ 212*)-BUILDING CONTRACTS -TIME FOR PERFORMANCE.

Where a contract to erect a building does not fix the time for completion, the law implies that a reasonable time for performance is in

tended.

[Ed. Note. For other cases, see Contracts, Cent. Dig. 88 944-956; Dec. Dig. § 212.*] 5. CONTRACTS (§ 212*)—BUILDING CONTRACTS -IMPLIED OBLIGATIONS.

In the absence of any provision in a building contract as to the time of payment, the law presumes that payment shall be made on the completion of the work.

[Ed. Note. For other cases, see Contracts, Cent. Dig. 88 944-956; Dec. Dig. § 212.*]

the building and damages per day for any delay, and which requires the contractor to im inite for enforcement, though it is intended that mediately enter on the work, is sufficiently defthe contract shall be reduced to writing as evidence of its terms.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 10-20; Dec. Dig. § 9.*]

Appeal from Circuit Court, Sebastian Coun ty; Daniel Hon, Judge.

Action by Frederick J. Schleuter and another against Lewis Friedman and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

Appellees brought this suit in the circuit court against appellants to recover damages for an alleged breach in a building contract with them. Appellees were contractors and

house builders, and appellants were the owners of certain lots in the city of Ft. Smith upon which they desired to erect a threestory business house. Appellants advertised for bids for the erection of the house on the lots according to the plans and specifications furnished by them. The notice and advertisement for bids and the plans and specifications which accompanied them comprised 22 typewritten pages of legal size. Hence it is impracticable to set them out in full here. We deem it sufficient to say that the description of the lots upon which the house was to be built is contained in the notice and advertisement for bids. The plans and specifications were prepared by the architect of appellants, and were full and complete. They contained a definite and detailed statement of the kind and quality of material to be used, the dimensions of the building and the various rooms to be contained therein, and the exact manner in which every part of the work should be done. In short, they were as specific as could be, and were intended as a definite and specific guide in the erection of the building. They provided for a bond to be executed by the builder, and contained clauses relative to changes in the contract and disputes arising between the builder and owner. They provided that the work should be done by union labor, and that the contractor should be responsible for all damage suits arising out of and in connection with the work. Another clause provided that the details, drawings, and specifications are intended to describe the work, and shall not be deviated from without written instructions from the architect. The notice and advertisement reserved to the owner three days to determine the successful bidder, and provided that any and all bids might be rejected after the bids were opened. The bid of the appellees was as follows:

"Ft. Smith, Ark., Aug. 9-11. "We propose to erect the building for Fried

6. CONTRACTS (§_9*)-BUILDING CONTRACTS-man-Mincer according to plans and specificaVALIDITY-CERTAINTY.

A contract for the construction of a building according to plans prepared by an architect, which fixes the time for the completion of

tions for the sum of $26,229.00 (twenty-six thousand two hundred and twenty-nine dollars). This bid is subject to the agreement

of June 15, 1911, between architects and con- | be ready to sign the contract at 4 o'clock that tractors, and subject to three days' accept- afternoon; that he went to see Mr. Mincer ance." about 4 o'clock, and after some discussion about the matter he declined to sign the contract. Appellees also adduced evidence tending to show the amount of damages suffered by them.

The testimony on the part of appellees tended to show that the bids were opened on Thursday, and that appellants, after looking at the bids, said they would not need three days to determine who was the successful bidder, but that they would decide the question the next morning. Will Schleuter, one of the appellees, testified that he met Mr. Friedman, one of the appellants, the next morning after the bids had been opened, and in regard to the acceptance of the bid of appellees by appellant we quote from his testimony as follows: "A. I met Mr. Friedman, and asked him whether he had decided on who was to have the job. Q. That was Friday morning about what time? A. That was between 9 and 10 o'clock. Q. Where did you meet him? A. Right at Padgett's café. Q. In front of where their office had been? A. Yes, sir. Q. And he said, 'Yes,' they had decided that yesterday? A. Yes, sir; and that we got the job, and he was glad we got it, and that he had told Mr. Strong to make up the contract, and

that he was working on it then. I told him I was glad of it, glad that we got the job, and went on. That same afternoon, Friday afternoon, I met Mr. Mincer on the car, and he told me the same thing; that we had the job, and they were fixing up the contract and bond then. So the next morning-that is, Saturday morning-there was to be another job let out of Mr. Strong's office, and I went up there to see him about it, and I went up and he said: 'Here is the bond. You take the bond and have it fixed up, and come back here at 10 o'clock, and I will have the contract ready for you.' So I took the bond, and was going to give it to Fred, my brother, and that is all I know about that. He took it off at that time." He testified, further, that appellees were the lowest bidders, and that the architect, who made the plans for appellants, and whose business it was to prepare the bond and contract, did prepare the bond and gave it to appellees, and also prepared a written contract. The testimony showed that appellees executed the bond, with sureties, and that the bond was submitted by them to appellants, who retained it. Later on the appellants refused to sign the contract, and notified appellees that they would not be permitted to construct the house. Fred Schleuter testified that appellants examined the bond executed by appellees and accepted it. He said they told him the bond was satisfactory, and then suggested that we had not agreed on the time limit and the forfeiture. After some discussion of the matter we agreed to complete the job in 100 working days, and agreed on $25 per day for damages for delay. He also stated that Mr. Mincer, one of the appellants, said they had not signed the contract that morning;

The evidence on the part of appellants tends to show that they did not accept the bid of appellees, by exercising their right under the notice and advertisement to reject it. They were questioned in regard to the conversation with Will Schleuter and Fred Schleuter, and denied that they had it, or that they told them that appellees' bid would be accepted. The architect admitted that he prepared the contract, but testified that he wrote it at the suggestion of one of the appellees, and that neither one of appellants requested him to prepare it.

The jury returned a verdict for appellees, and from the judgment rendered appellants have duly prosecuted an appeal to this court.

Read & McDonough, of Ft. Smith, for appellants. C. E. & H. P. Warner, of Ft. Smith, for appellees.

HART, J. (after stating the facts as above). [1] Counsel for appellants asked the court to direct a verdict for them, and the refusal of the court to do so is the only ground upon which we are asked to reverse the judgment. They asked for a directed verdict on the ground that no agreement was ever made between appellants and appellees, and contend, further, that, if there was an agreement entered into, it was an oral agreement, and not binding on the parties, because it was the understanding and intention of the parties that any agreement entered into should be reduced to writing before it should become binding. The contract could be performed within a year, and contracts of this character are not prohibited by the statute of frauds in this state; hence a written contract was not necessary. 6 Cyc. 10; Sarles et al. v. Sharlow et al., 5 Dak. 100, 37 N. W. 748.

The mere

[2] In the case of Emerson v. Stevens Grocer Co., 95 Ark. at page 426, 130 S. W. at page 543, the court said: "If the contract is actually entered into and made, whether by messages, correspondence, or by word of mouth, the agreement becomes at once effective, although it was expected that the terms would afterwards be embodied in a written instrument and signed. reference to a future contract in writing would not negative a present contract, if the terms thereof were actually assented to by both parties. The written draft of the contract would only be a convenient record of the agreement and the evidence thereof; but it would only constitute evidence of the agreement, and its absence would not affect

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