On Rrhraring.
McCurroch, J.Upon further consideration of this case we are unanimously of the opinion that we reached the wrong conclusion as to the admissibility of the offered testimony of J. M. Spradling. After a more critical examination of the testimony, aided by argument of appellee’s counsel on this important point, which was entirely ignored by appellee in the former presentation- of the case to us, we think that the witness did not show sufficient familiarity with the conditions and value of the Montreal Coal Company property to qualify him to testify on the subject. He only pretended to be acquainted with the property in a general way, and did not claim familiarity with it in detail.He -did not know the number of slopes or mines owned by the company, he had never been underground in the mines, and did not know the extent and cost of their development. In fact, the only special knowledge which the witness displayed -was that concerning the value of coal lands generally in that locality.
The question whether a witness has shown sufficient knowledge concerning the value of property to give him a definite opinion on the subject is a matter, to some extent, within the sound discretion of the trial judge, and this -court will not reverse for alleged error in this respect unless an abuse of such discretion appears. St. Louis, Ark. & Tex. Rd. v. Anderson, 39 Ark. 167; 17 Cyc. 30. No abuse of the court’s discretion is shown here.
It is announced in the former opinion that no other error was found by the majority of the court. Mr. Justice Wood, who wrote the opinion, expressed the view that the court below erred in refusing to give the fourteenth, fifteenth and twenty-ninth instructions requested by appellant. These were fully covered by instructions which the court gave. The court narrowed the issue to the question of fraudulent concealment of the prospective resale of the stock to Bache, thus excluding from the consideration of the jury all questions as to misrepresentation of the financial condition of the company. The court also instructed the jury that if appellee consummated the deal and transferred his stock to appellant after he had obtained knowledge of the alleged fraud and deceit, he could not recover. This fully covered the subject of the rejected twenty-ninth one.
The alleged misconduct of counsel consists of comments and remarks made during the progress of the cross-examination of appellant as a witness in his own behalf. It arose out of a controversy between opposing counsel, and the court seems to have done its best to restore order and remove any possible prejudice that might result from the incident. While the conduct of the attorney is not to be commended, we can not see that appellee secured thereby any undue advantage over his antagonist, and we do not feel at liberty to disturb the verdict on that account. Kansas City S. Ry. Co. v. Murphy, 74 Ark. 256.
Learned .counsel for appellant argue with much zeal and plausibility that the plaintiff did not make out a case to go to the jury, and that the findings of the jury as to the various essential elements of the alleged cause of action are not supported by evidence. The same question was argued with equal force and confidence when the case was before us on former appeal, but we decided that there was enough evidence to go to the jury. There is little difference in the evidence in the present record and in that presented on the former appeal, and we must treat the former decision as conclusive of the question.
We are free to say that the various questions of confidential relations between the parties and of fraud and deceit practiced by the defendant were decided by the jury against what appears to us to be the preponderance of the evidence; but, as there was a conflict in the evidence on these points, it is not within our province to reverse the case on that account. The issues were submitted to the jury on correct instructions, and as there was evidence to sustain it the verdict must stand.
The verdict of the jury assessed the damages in the sum of $1575, and the court rendered judgment for that amount with interest from the date of the sale of the stock. This was erroneous. The judgment should have'been only for the amount assessed by the jury.
The rehearing is therefore granted. The judgment is modified to the extent of striking out interest, and affirmed as thus modified.
Hile, C. J., disqualified and not participating. Wood, J., dissents on the ground that the ’court erred in refusing instructions requested by appellant, and that the evidence does not sustain the verdict.