dissenting. There are several respects in which I am unable to agree with the majority opinion.
One. On page 3 of the opinion it is stated: “Both Harris’s claim to compensation for extra work and Sollicker’s claim to damages for Harris’s errors and omissions were disputed issues (emphasis mine) of fact. Both issues were submitted to the jury.” The rest of the opinion is apparently based on the above quoted statement which is true insofar as it goes- — -which statement is, however, only part of the truth. It is also true that it was a disputed issue whether Schicker owed Harris the balance of $1,350 (or any amount) on the written (or original) contract. This can be verified by reading the testimony of William O. Beynolds, Frank Bowers, G. W. Lashlee, W. T. McNutt, and E. B. Schick-er, Jr. — all as abstracted by appellant himself. Not only so, but Instruction No. 3 (Tr. 403) presents that same disputed issue to the jury.
Two. In appellant’s Motion for a new trial (set out at pages 15 to 19 of his brief) there appears this paragraph:
“4. That after the jury returned answers to the interrogatories, counsel for both parties appeared before the trial judge on or about July 9, 1965, and presented the understanding of each party as to the agreement under which the cause was submitted upon interrogatories.”
Following the above appellant sets out his version of the “agreement” — it being admitted no written record was made. The trial court heard the evidence presented on the Motion and denied the same. In my opinion this settles the issue. In Sellers v. Harvey, 220 Ark. 541, we said :
“Another settled rule is that the motion is addressed to the sound discretion of the court and this court will not reverse for failure to grant it unless an abuse of such discretion is shown.”
No such abuse is pointed out by the majority.
Therefore, it seems to me that the majority has usurped the function of the trial court which found that there was no misunderstanding between the parties when the case was presented to the jury.
The case was fully developed, the jury was correctly instructed, the Motion for a new trial was properly overruled, therefore I think the jury verdict should be accepted and the judgment affirmed.
Harris, C. J., joins in dissent.