{
  "id": 1364138,
  "name": "Smith v. Westlake",
  "name_abbreviation": "Smith v. Westlake",
  "decision_date": "1922-03-06",
  "docket_number": "",
  "first_page": "384",
  "last_page": "387",
  "citations": [
    {
      "type": "official",
      "cite": "152 Ark. 384"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "12 Ark. 179",
      "category": "reporters:state",
      "reporter": "Ark.",
      "opinion_index": -1
    },
    {
      "cite": "40 Ark. 430",
      "category": "reporters:state",
      "reporter": "Ark.",
      "opinion_index": -1
    },
    {
      "cite": "88 Ark. 592",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1517075
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ark/88/0592-01"
      ]
    }
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  "last_updated": "2023-07-14T18:09:00.627662+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Smith v. Westlake."
    ],
    "opinions": [
      {
        "text": "Humphreys, J.\nAppellant instituted suit In the Perry Circuit Court against appellee J. E. Westlake upon an individual account for $399.05, and appellees jointly upon an account for $502.37 and a note for $150. An answer was filed, admitting the indebtedness upon the note in the sum of $150 with interest, by both appellees, the individual indebtedness for $399.05 on open account by appellee J. E. Westlake, and the individual indebtedness of $502.37 on open account by M. L. Weems, and denying individual or joint liability on open account for $502.37 by appellee J. E. Westlake. Judgment by confession was rendered against both appellees for the amount due upon the note, against J. E. Westlake individually on open account for $399.05, and against M. L. Weems individually on open account for $502.37. A verdict was returned and judgment rendered in favor of appellee J. E. Westlake upon the item of $502.37, which said appellee denied he owed, and which constituted the only issue upon the trial of the cause. From the judgment dismissing appellant\u2019s complaint against J. E. West-lake for the item of $502.37 an appeal has been duly prosecuted to this court.\nThere was a misjoinder of parties in this action, but no objection has been made on that account Without raising the question of a misjoinder of parties, the cause proceeded to a final determination upon the sole issue of whether appellee J. E. Westlake was liable to appellant upon the item in the open account of $502.37 as an original undertaking. The complaint, in substance, charged that appellant, a merchant, furnished Wrostlake\u2019s share-cropper, M. L. Weems, goods in the amount of $502.37 -which were to be paid for by said Westlake, and which were charged to Westlake upon appellant\u2019s books. Westlake denied this allegation in the complaint, and upon the issue joined the'cause was submitted to the jury upon the evidence adduced and instructions of the court. The evidence was in conflict. That adduced on behalf of the appellant tended to show that Westlake undertook to pay for the goods furnished by appellant to said appellee\u2019s share-cropper, M. L. Weems. The evidence adduced on behalf of appellee tended to show otherwise. The undertaking, if any, was an oral one, and in order to fix liability upon Westlake must have been an original, and not a collateral undertaking. As tending to show that the undertaking was an original one, in the course of his testimony, appellant undertook to detail the specific language used by Westlake in obligating himself to pay for the goods. He testified that on the 31st of March Westlake came to his store and got a list of merchandise for Weems and himself, and was informed (hat it would run over the amount covered by the note which both of them had signed, whereupon Westlake said, \u201cHe (referring to Weems) has got a good crop, let him keep on, and I will see that it is all paid. \u2019 \u2019 Based upon this particular language, appellant requested, and was refused, over his objection and exception, the following instruction: \u201cYou are instructed that if you find that the defendant, J. R. Westlake, told the plaintiff, Smith, with reference to the Weems account, \u2018I\u2019ll see it paid,\u2019 that it was equivalent to saying, \u2018I\u2019ll pay the account,\u2019 then, and in that event, you will find against the defendants, Westlake and Weems, jointly for the account of $502.37.\u201d The vice in this instruction is that the phrase, \u201cI\u2019ll see it paid,\u201d does not necessarily mean the same as- the phrase, \u201cI\u2019ll pay the account.\u201d Swaboda v. Throgmorton-Bruce Co., 88 Ark. 592. The instruction being erroneous, the court properly refused to give it.\nThe court instructed the jury at considerable length, and it is impractical, without unduly extending this opinion, to set the instructions out in full as given by the court. We have read them carefully, and think they fairly presented to the jury the issue of whether the undertaking was an original or collateral one, or whether there was any undertaking at all.\nNo error appearing, the judgment is affirmed.",
        "type": "majority",
        "author": "Humphreys, J."
      }
    ],
    "attorneys": [
      "J\u00f3hn L. Hill and Carmichael & Brooks, for appellant.",
      "J. 11. Bowen, for appellees."
    ],
    "corrections": "",
    "head_matter": "Smith v. Westlake.\nOpinion delivered March 6, 1922.\nFrauds, statute of \u2014 promise to pay another\u2019s debt. \u2014 Where it was a question whether a verbal promise of a landlord to pay his tenant\u2019s account of supplies was an original undertaking or was a collateral one within the statute of frauds, it was not error to refuse to instruct the jury that if the landlord told the plaintiff, with reference to the tenant\u2019s account, \u201cI\u2019ll see it paid\u201d, this was equivalent to saying, \u201cI\u2019ll pay the account\u201d, and therefore was an original undertaking.\nAppeal from Perry 'Circuit Court; John W. Wade, Judge;\naffirmed.\nJ\u00f3hn L. Hill and Carmichael & Brooks, for appellant.\nThe court\u2019s oral instruction was misleading and erroneous. There is no dispute about the credit having been extended to Westlake. It is admitted that the charge was made to him on the books and on the bills presented to him. The court erred in refusing to instruct the jury, as requested by appellant, to the effect that if Westlake, referring to Weems\u2019 account, told appellant, \u201cI\u2019ll see it paid,\u201d it was equivalent to saying, \u201cI\u2019ll pay the account\u201d 40 Ark. 430; 12 Id.. 179; 88 Id. 592.\nJ. 11. Bowen, for appellees.\nIt is a mistake to say tliat there is no dispute about the credit having been extended to Westlake, lie testified, and positively denied that he stood good for this account. Smith,.in bringing suit against \"Weems and taking judgment against him for the disputed account, fixed the liability of Weems and precluded recovery from West-lake. 12 Ark. 179; 88 Id. 592."
  },
  "file_name": "0384-01",
  "first_page_order": 408,
  "last_page_order": 411
}