{ "id": 1866040, "name": "Gulledge vs. Howard and wife", "name_abbreviation": "Gulledge v. Howard", "decision_date": "1861-01", "docket_number": "", "first_page": "61", "last_page": "63", "citations": [ { "type": "official", "cite": "23 Ark. 61" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "11 Wend. 25", "category": "reporters:state", "reporter": "Wend.", "opinion_index": -1 }, { "cite": "15 Ark. 403", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728378 ], "opinion_index": -1, "case_paths": [ "/ark/15/0403-01" ] }, { "cite": "4 Ark. 312", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "2 Ark. 360", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1848186 ], "pin_cites": [ { "page": "392" } ], "opinion_index": -1, "case_paths": [ "/ark/2/0360-01" ] } ], "analysis": { "cardinality": 320, "char_count": 4302, "ocr_confidence": 0.41, "pagerank": { "raw": 5.85204257721707e-07, "percentile": 0.952056471246007 }, "sha256": "e583b2c2c30e5f02fc3caa9a7c955a7b6328a1b6d905feb7186558f776bbdc65", "simhash": "1:1a2225c47cdcd6dc", "word_count": 770 }, "last_updated": "2023-07-14T20:15:02.560591+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Gulledge vs. Howard and wife." ], "opinions": [ { "text": "Mr. Justice Compton\ndelivered the opinion of the court.\nHenry B. Howard and wife (formerly Mrs. Nelson,) brought an action of assumpsit against Thomas W. Gulledge, founded on the following instrument:\n\u201c Received of Mrs. F. Nelson, two hundred dollars, to be applied to entering land in her name, in Drew- county, Arkansas, and ten dollars to give to \u00a5m. J. Carter, of Drew county, Arkansas, and ten 75-100 dollars to be given to J. B. Erwin, of Drew county, Arkansas. January 1st, 1855.\u201d\n(Signed.),THOMAS GULLEDGE.\nThe defendant pleaded 1st: non asswnpsit; 2d, that the cause of action did not accrue within three years next before the commencement of the suit; and 3d, that he casually lost the money, etc. The second and third pleas were held bad on demurrer; issue >was joined to the first plea, and the cause being submitted to the court, sitting as a jury, the finding was for the plaintiff, and judgment accordingly. The defendant then moved for a new trial, which was overruled, and he appealed.\nIn sustaining the demurrer to the second plea, the court did not err. The first count in the declaration, though inartistically drawn, was designed to be, and may be treated as founded on the written instrument for the recovery of damages arising from a failure on the part of the defendant, to appropriate the money as by his undertaking he had agreed to do; consequently, the period of limit\u00e1tion, was five years. Gould\u2019s Dig., ch. 106, sec. 15. Whether the demurrer was correctly sustained to the third plea, it is not material to enquire ; because, the matter alleged in this plea being admissible under the plea of non-assumpsit, and having been given in evidence under that plea, it cannot be said that the defendant was prejudiced by the ruling of the court. Pelham vs. Page, 1 Eng., 535.\nOn the trial, the defendant proved the loss of the money and the manner of its loss, and being a mandatory or bailee without .reward, as shown by. the proof,uhis liability depended on whether he was guilty of gross negligence. This was a question for the jury; (Doorman vs. Jenkins, 2 Adol. & Ell. 256;) and the court sitting as a jury, by consent, having found for the plaintiff, we do not feel authorized to disturb the finding, there being no total want qf evidence to support it.\nLet the judgment be affirmed.", "type": "majority", "author": "Mr. Justice Compton" } ], "attorneys": [ "Harrison, for tbe appellant.", "Winter for the appellees." ], "corrections": "", "head_matter": "Gulledge vs. Howard and wife.\nA count upon a written instrument \u2014 being a receipt for money to be paid over for particular purposes \u2014 for the recovery of damages arising from a failure to pay over the money, is subject to the limitation of five yoars, not three years.\nThis court will not enquire whether the Circuit Court rightly sustained a demurrer to a plea, where the defendant might have given, and did give in evidence, under another plea, the same facts set up in the plea demurred to.\nThe liability of a mandatory, or bailee without reward, for the loss of the goods entrusted to him, depends on whether he was guilty of gross negligence.\nThe finding of the court, sitting as a jury, will not be disturbed, unless there was a total want of evidence to support it.\nAppeal from Drew Circuit Cou/rt.\nHon. John C. Murray, Circuit Judge.\nHarrison, for tbe appellant.\nThe action was not founded on the receipt, but on the implied contract to refund the money: and the period of limitation was three years. Sec. 10, ch. 106, Dig. The receipt is not a contract, but only evidence of one. Be\u00e9be et al, vs. B. E. Bank, 4 Ar7c. 127; 4 T. B. 151; 2 Id. Baym. 758.\nThe loss of the money was a good defence to the action, unless lost by the defendant\u2019s negligence: and if so, that fact should have been put in issue by replication. Story on Bail, secs. 212, 213,278, 339,410; 3 East. B. 192; Ch. PI. 213; Gould\u2019s PI. 14.\nWinter for the appellees.\nThere was no total want of evidence to sustain the material allegations in the declaration, and therefore the finding of the court will not be disturbed. 2 Ark. 360, 392. 4 Ark. 312 ; 15 Ark. 403.\nThe defendant was bound to keep and appropriate the money with due care and diligence; and if it was lost he was bound for it, unless it clearly appeared that he was free from fault or negligence. Story on Bail. 173, 175; Jones on Bail. 1046; 11 Wend. 25.\nThe defendant was not prejudiced by the demurrer to his 3d plea being sustained. 1 JEng. 536." }, "file_name": "0061-01", "first_page_order": 69, "last_page_order": 71 }