{
  "id": 1715474,
  "name": "W.E. GALLION v. Mack TOOMBS",
  "name_abbreviation": "Gallion v. Toombs",
  "decision_date": "1980-04-02",
  "docket_number": "CA 79-199",
  "first_page": "955",
  "last_page": "958",
  "citations": [
    {
      "type": "official",
      "cite": "268 Ark. 955"
    },
    {
      "type": "parallel",
      "cite": "597 S.W.2d 842"
    }
  ],
  "court": {
    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
    "name": "Arkansas Court of Appeals"
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  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
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  "cites_to": [
    {
      "cite": "249 Ark. 948",
      "category": "reporters:state",
      "reporter": "Ark.",
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      "weight": 2,
      "year": 1971,
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    {
      "cite": "266 Ark. 345",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        8718693
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      "weight": 2,
      "year": 1979,
      "opinion_index": 0,
      "case_paths": [
        "/ark/266/0345-01"
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    {
      "cite": "568 S.W. 2d 475",
      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
      "year": 1965,
      "opinion_index": 0
    },
    {
      "cite": "264 Ark. 162",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1668938
      ],
      "year": 1965,
      "opinion_index": 0,
      "case_paths": [
        "/ark/264/0162-01"
      ]
    },
    {
      "cite": "239 Ark. 793",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1730662
      ],
      "weight": 2,
      "year": 1965,
      "opinion_index": 0,
      "case_paths": [
        "/ark/239/0793-01"
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  "last_updated": "2023-07-14T19:03:10.426772+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "W.E. GALLION v. Mack TOOMBS"
    ],
    "opinions": [
      {
        "text": "Steele Hays, Judge.\nAppellant entered into a written contract with appellee to drill two irrigation water wells and install certain pumps and equipment for an agreed price of $12,500.00. Subsequent to the written contract some charges were orally agreed upon, and appellant claimed extra charges for a total amount of $15,911.10. Appellee paid appellant $9,-166.66, but declined to pay any more.\nAppellant brought this action to recover the alleged outstanding indebtedness. Appellee denied the indebtedness to appellant and filed a counterclaim, alleging breach of contract, breach of warranty and damages.\nAt trial, the issues were submitted to the jury, which rendered a verdict for appellee on his counterclaim in the sum of $9,000.00, and appellant brings this appeal.\nAppellant alleges five points for reversal. He first alleges the trial court erred in admitting evidence to vary the terms of the written contract. He argues the written contract merged all prior negotiations, and evidence should not have been permitted to vary the terms of the written contract. The test of admissibility in such cases is whether the evidence offered tends to alter, vary or contradict the written contract, or whether it tends to prove a part of the contract about which the written contract was silent. In the former instance, the testimony is inadmissible; in the latter, it is allowed. Loe v. McHargue, 239 Ark. 793, 394 S.W. 2d 475 (1965). It is evident the written contract did not contain the entire agreement, and the trial judge properly admitted parol testimony to prove parts of the agreement not reduced to writing, Lane v. Pfeifer, 264 Ark. 162, 568 S.W. 2d 475 (1965).\nAppellant\u2019s second point for reversal is that the trial court erred in admitting speculative evidence of damages. Appellee was permitted to introduce evidence of estimated gross income from four acres of rice which appellee contends he planted, but which he failed to produce and harvest in 1975 because of lack of irrigation water the well was expected to produce, without proof of harvesting and marketing expense. Appellant objected on the ground crop loss was not the correct measure of damages on the land not cultivated. However, the appellee\u2019s evidence was that in 1975 four acres of rice had been planted, but failed to produce because the well did not supply 1250 gallons of water appellant warranted. Also, there was evidence from which a jury might find crop damage in 1975 was reasonably foreseeable. We find no error in allowing evidence as to the 1975 crop damage. However, it was error for the court to allow testimony by appellee of his gross income loss on production on the four acres and other acreage without evidence of what the cost would have been in the harvesting and marketing of the portion of the crop allegedly not produced because of the water shortage. Without this evidence we conclude the jury\u2019s verdict was based on speculative evidence. While the appellant\u2019s objections to the evidence could have been more to the point, we find the appellant sufficiently called the court\u2019s attention to the error in the evidence especially when counsel for appellant objected and stated, \u201cI know I have got a continuing objection, but this is so highly speculative and doesn\u2019t meet the requirements for measure of damages\u201d. The error was compounded by the admission of appellee\u2019s exhibits reflecting his computations of alleged crop loss and reflecting a claimed \u201ctotal loss\u201d without showing harvesting and marketing expenses. Dickerson Construction Co. v. Dozier, 266 Ark. 345, 584 S.W. 2d 36 (1979); Sullivan v. Voyles, 249 Ark. 948, 462 S.W. 2d 454 (1971).\nSupplemental Opinion on Denial of Rehearing delivered April 30, 1980\nAs the case must be reversed for the error above discussed, we do not reach the other alleged errors.\nReversed and remanded.",
        "type": "majority",
        "author": "Steele Hays, Judge."
      },
      {
        "text": "Per Curiam.\nIn our original opinion handed down April 2, 1980, we directed this case be remanded. The circuit court judgment was in favor of the defendant-appellee on the claim and the counterclaim. Our reversal is only of the judgment on the counterclaim, thus only the counterclaim need be retried upon remand. The judgment on the claim of the plaintiff-appellant and in favor of the defendant-appellee is affirmed. Our original opinion is amended to recite that the case is affirmed in part and reversed in part and remanded.",
        "type": "rehearing",
        "author": "Per Curiam."
      }
    ],
    "attorneys": [
      "Bradley & Coleman; by: Douglas Bradley, for appellant.",
      "Branch & Thompson, by: Robert Branch, for appellee."
    ],
    "corrections": "",
    "head_matter": "W.E. GALLION v. Mack TOOMBS\nCA 79-199\n597 S.W. 2d 842\nCourt of Appeals of Arkansas\nOpinion delivered April 2, 1980\nReview Denied April 30, 1980\nReleased for publication April 30, 1980\nBradley & Coleman; by: Douglas Bradley, for appellant.\nBranch & Thompson, by: Robert Branch, for appellee."
  },
  "file_name": "0955-01",
  "first_page_order": 991,
  "last_page_order": 994
}