#### Bailey & Co. v. Southwestern Veneer Co.

Opinion delivered January 21, 1918.

Appeal and error — conflicting testimony — submission to jury.— Where the testimony is conflicting it is error to withdraw the case from the jury.

Appeal from Woodruff: Circuit Court, Southern District; J. M. Jackson, Judge;

reversed.

Jonas F. Dyson, for appellant.

1. It was error to direct a verdict for appellees. There was an issue of fact to be submitted to a jury. 112 Ark. 305; 126 Icl. 257; Act No. 81, Acts 1913, § 137.

Harry M. Woods, for appellees.

A verdict was properly directed as there was no question of fact for a jury. 126 Ark. 257; 57 Id. 561; 69 Id. 562; 97 Id. 4-38; Act 81, Acts 1913. There was no legal evidence of liability.

McCULLOCH, C. J.

This is the second appeal in the same ease, the facts being stated in the opinion delivered on the former appeal. 126 Ark. 257.

The issues are the same as on the first trial, and also the testimony adduced in support thereof, except that in the last trial the defendant introduced as a witness Mr. *64Lovelace,' the manager, and he denied that he accepted payment of the draft or agreed to do so, and also testified that the draft was accidentally lost. He admitted, however, that he had stated to witnesses that the draft had probably gone to the waste basket. The court gave a peremptory instruction in favor of the defendant and plaintiffs have appealed.

Under the law of the case, as stated in the former opinion, the evidence adduced in the last trial was sufficient to warrant a submission of the issue to the jury whether or not the draft had been wrongfully destroyed or lost by accident. It is true that Lovelace testified on behalf of the defendant that he did not intentionally destroy the draft, but lost it by accident, but there is testimony to the effect that he had told other parties that lie had thrown the draft into the waste basket and burned it up, and this constituted a conflict in the testimony to be settled by the verdict of the jury.

It was error, therefore, for the court to withdraw the case from the jury. Reversed and remanded for a new trial.