Opinion
Opinion delivered November 24, 1930.
1. APPEAL AND ERROR — CONCLUSIVENESS OF VERDICT. — That a verdict is inconsistent is not ground for reversal where it is supported by sufficient evidence. 2. JUDGMENT — NOTWITHSTANDING VERDICT. — A judgment notwithstanding the verdict will not be rendered for an amount larger than the amount awarded plaintiff, where conflicting evidence would support a verdict for either party.
Appeal from Ouachita Circuit Court, Second Division; W. A. Speer, Judge; affirmed.
Haynie, Parks Westfall, for appellant.
L. B. Smead and H. G. Wade, for appellee.
STATEMENT OF FACTS
Appellees brought this suit against appellants to recover an indebtedness alleged to be due them for road construction under a verbal contract, and from the judgment in their favor the appeal is prosecuted.
It appears from the testimony that appellants, a partnership, were the principal contractors in a road construction contract for a certain section of State highway No. 167, in Ouachita County, and sublet certain portions thereof to three separate contractors, the west 12 stations to B. W. Robertson, the middle to Tom Haynie and the west and north ends to John Foley. The subcontractors were to receive 23 cents per cubic yard for all excavations, and an additional 2 cents per cubic yard for all station overhauls (a station being 100 feet); and settlement to be made semi-monthly on approximate estimates to be furnished by the State Highway Engineer, F. R. McClain, with 10 per cent. retained as a guarantee of the maintenance work, and final settlement was to be governed by the engineer's cross-section and the final estimate of the work.
Robertson began work about the last of October, 1928, and partially completed the 12 stations by December 20. On about that date Fred Cavender, being in partnership with Tom Haynie in some road appliances and equipment, discovered that subcontractor Robertson had all the stations of the road that were suitable for using his elevators and trucks on. Cavender and Haynie entered into a contract with Robertson agreeing, if he would give up the part of the road upon which he was then working to Haynie, Cavender would have the State Highway Engineer cross-section the work that had already been done by Robertson and pay him his retained percentage and relieve him of all further liability for maintenance of that part of the contract. The State Highway Engineer made the final estimate and found that Robertson had 1,311 yards of excavation to his credit at a price of 23 cents per cubic yard, amounting to $3,015.53, and appellants paid Robertson his retained percentage.
Cavender then made a contract with B. W. Robertson and Harry Worthington, under which they were to move on up the road to, the north end for grading a number of stations. Robertson and Worthington made the move and graded from stations 22 to 61, inclusive. In grading they hauled 9,983 yards of dirt, for which they were to receive 23 cents per cubic yard, and hauled 12,121 yards of station dirt for which they were to receive 2 cents per cubic yard, or $2,538.51. They were paid on the last work $1,512.48 and claimed a balance due thereon of $1,026.02. They assigned this account and claim to J. D. Robertson for the purpose of securing money to pay off the bills for labor and material incurred, and he was made a party to the suit.
Appellants denied the execution of the oral contract for work to be done after removal from the first stations; denied that the amount of dirt claimed to be moved was as alleged; denied the other allegations of the complaint, and that they were indebted in any sum to plaintiffs; alleged that they entered into a written contract with Robertson and Worthington to do the road work designated therein, under which plaintiffs had done work amounting to, according to the prices fixed in the contract, $4,392.77, and alleged that they had paid plaintiffs in the sum of $282.64 more than the whole amount due them under the terms of the contract.
The reply admitted the execution of the written contract by B. W. Robertson and Harry Worthington; denied that the work done thereunder amounted to only $4,392.77, as alleged in the answer, and that they had been paid the amount claimed or had been overpaid more than the amount due them under the contract. They alleged that they had performed all the work agreed to be done in the written contract; that the work thereunder had been taken over and accepted by the defendants and final estimates and payment made, and the written contract completely executed.
There were no objections to the instructions given by the court, and eleven jurors returned a signed verdict in favor of appellees for the sum of $446, and from the judgment thereon this appeal is prosecuted.
(after stating the facts). Appellants insist that the verdict is not supported by the testimony, while appellees contend that the verdict is demonstrably inaccurate, and that they are entitled to a judgment, notwithstanding the verdict, for the full amount of their claim.
It may be said that the testimony is in conflict, and certainly as to whether there was a new oral contract made for the last work and a final settlement for the first work done under the written contract, and same is sufficient to have supported a verdict for either party, the plaintiffs or defendants, under their contentions.
It is true that the verdict is not consistent, but that is no ground for reversal thereof in this court, it being supported by sufficient testimony. The appellants contend that there was only one contract, and that the final estimate of all work done, both at the first stations and after the removal north to the other stations, under the contract amounted to a certain designated sum, and that the payments made were more than the amount thereof — an overpayment, in fact, of a substantial amount. On the other hand, according to appellees' contention, they were only paid in full for the amount of work first done, and they insist appellants were due them more than a $1,000 for the work done under the oral contract after the removal from the first stations and the completion of that contract and final payment made, and that the jury, having found in their favor, entitles them to a judgment, notwithstanding the verdict, for the whole amount.
There could be no judgment notwithstanding the verdict upon this state of the case within the meaning of the statute (6273, C. M. Digest), and the rules of this court thereon. Fulbright v. Phipps, 176 Ark. 356, 3 S.W.2d 49; Moore v. Rogers Wholesale Gro. Co., 177 Ark. 993, 8 S.W.2d 457; Oil Fields Corp. v. Cubage, 180 Ark. 1018, 24 S.W.2d 328.
The judgment is affirmed.