o£ .. Evidence contract.
The only matter in issue between these parties in the court below was whether the defendant agreed to pay for the plaintiff’s services in selling the defendant’s lands the sum of twenty-five cents per acre and also the commission mentioned in the complaint, or whether the entire compensation stipulated for was the commission paid before the commencement of this suit. On this question the direct evidence was conflicting ; and it was competent to prove any fact which bore upon the probable truth of what was alleged on either side as having been the agreement. The testimony of Learning tended to support that of the plaintiff by showing that the compensation claimed by the latter was reasonable and not unusual. And the action of the court in refusing to exclude it is sustained by the authorities cited below. Abbott’s Trial Evidence, 305, 367; Starkie, Ev. p. 67, 617; Norris v. Spofford, 127 Mass. 85; Knallakan v. Beck, 47 Hun, 117; Swain v. Cheney, 41 N. H. 232 ; Cornish v. Graff, 36 Hun, 160; Valley Lumber Co. v. Smith, 71 Wis. 304; Moore v. Davis, 49 N. H. 45; Kidder v. Smith, 34 Vt. 294.
% when vei*diet not disturbed for deuce.
The testimony of Dowdy aud Sallee had no such relnr . • i i • i* evancy to the iact m controversy as entitled it to admisgion. But it was merely cumulative, and the evidence adduced by the defendant shows that he was not surprised by its introduction. The error of the court in admitting it is therefore no cause for disturbing a verdict, sufficiently supported as this is by competent testimony. Barringer v. Nesbit, 1 S. & M. 22; Owen v. Jones, 14 Ark. 503 ; Sharp v. Johnson,22 Ark. 79; Peterson v. Gresham, 35 Ark. 381.
3. Letters fiied with
Objection was made to the reading of Greer’s letters in evidence on the ground that they had not been filed with the complaint. But section 5064 of Mansfield’s Digest, on which this objection is based, applies only to such deeds or other writings as are relied upon or referred to in the pleadings. It does not require the filing of other writings which the parties may desire to offer in evidence. Newman, Pl. & Pr. 251, 619 ; Chamblee v. Stokes, 33 Ark. 543.
The letters, dated respectively March 13th and March 28th, 1890, were objected to on the additional ground that they were not relevant. But they contain nothing prejudicial to the defendant that is not also found in other letters read to the jury and to the reading of which no objection was made except that they had not been filed.
4. Accep. not conclusive of payment ful1-
The case of the Springfield R. Co. v. Allen, 46 Ark. 217, and the case of Bevens v. Dunlop, 14 S. W. Rep. 769,* are cited in support of the appellant’s tion that the court erred in refusing his second instruction. But in each of those cases a smaller sum than the creditor demanded was offered by the debtor on condition that it should be accepted in satisfaction of the whole claim. And the creditor was estopped, not by his written receipt, but by his agreement to abide the adjustment of a controversy as to the amount due. No such case is presented here. At the time Laws received the check read in evidence, no dispute had arisen as to the compensation he was entitled to receive for his services. The check was not pleaded as a release ; and there was no evidence to show that it was remitted under an agreement that it should be accepted in satisfaction of a demand for a larger sum. The contention is that it represented all that was ever due to Laws under the contract. But conceding that the language of the instrument imports a full payment, it was only prima facie evidence of that fact, and the court did not err in refusing to charge that it was conclusive. 1 Greenl. Ev., secs. 211, 305 ; Springfield R. Co. v. Allen, 46 Ark., supra; Burke v. Snell, 42 Ark. 61.
Affirmed.
Battle, J., dissents.An tmreported case. (Rep).