136 Ark. 128 | Ark. | 1918
(after stating the facts). The ruling of the court was correct in instructing the jury to return a verdict in favor of the appellee. Appellant was bound under the terms of his contract to “immediately notify appellee on the receipt of the silo if any part or parts were lacking or defective. ’ ’ He was to allow a reasonable time for replacing such shortage or defective part. A failure to comply with the above terms on the part of appellant was to be deemed acceptance of the silo. The appellant failed to comply with the above provisions of the contract as shown by the correspondence and the oral testimony in the record.
The rule is that, where the trial court has directed a verdict, this court on appeal will give the testimony its strongest probative force in favor of the party against whom the verdict was rendered. Applying that rule here, we are convinced that there has been no breach of the contract on the part of the appellee, and that appellant failed, as before .stated, to comply with its terms. While the undisputed evidence shows that the appellee did not ship to the appellant the silo which he ordered, yet the proof is, as shown by the appellant’s own letters to the company, that he never notified the appellee what particular part or parts were lacking. His letter of August 5, in which he claims to have given notice to the company as soon as he discovered the mistake in the shipment, does not specify what part or parts the appellee had failed to ship in order to carry out its contract and make the silo complete. The letter, however, does carry the necessary implication that the silo would have been complete if the pieces had not been short, thus showing that at the time this letter was written appellant was making no complaint to the effect that the appellee’s failure to carry out its contract was because of its shipment of a 16 by 40 silo, instead of a 20 by 40 silo.
It was the duty of the appellant under the contract, when he ascertained that appellee had failed to ship a silo of the dimensions called for by the terms of the contract, to immediately notify the appellee of that fact. A failure to ship the whole silo of the dimensions called for was, of course, a failure to ship any part or parts as designated in the contract. If appellant had given immediate notice to the appellee that it had shipped a 16 by 40 silo instead of a 20 by 40, then it was plainly appellee’s duty to have complied with its contract by shipping the 20 by 40 silo. But even if it be conceded that the undisputed testimony shows that appellant gave to the appellee immediate notice after he discovered the defect or shortage that the shortage consisted in the failure to ship a 20 by 40 silo as the contract contemplated, then the undisputed evidence shows that the appellee complied with its contract by shipping all the lacking parts of which appellant had given it notice.
As we gather from, the testimony and the bill of lading of July 25, 1914, the company fully complied with its contract in shipping to the appellant the necessary lacking parts to complete the silo of which appellant had ■ given it notice. The letters of appellant to appellee clearly show that, after he knew of the mistake on the part of the appellee in first shipping a silo not specified in the contract, and after he knew that the appellee had shipped the part or parts which it believed necessary under the notice received to complete the silo according to the contract, he nevertheless offered to pay for the silo, provided the company would extend the time for the payments.
We conclude that the undisputed evidence shows that there was no breach of the contract upon the part of the appellee, but if we are mistaken in this, and if there was a technical breach of the contract on the part of the appellee, it is certain that the appellant waived such breach and accepted the shipments made by the appellee as a full compliance with its contract. Therefore, the trial court was correct in ruling that appellant was liable as a matter of law, and in instructing the verdict in favor of the appellee. The judgment is, therefore, affirmed.