161 Ark. 51 | Ark. | 1923
(after stating the facts). The main reliance for a reversal of the judgment by counsel for the defendant is that the court erred in giving instruction No. 1 at the request of the plaintiff. The instruction is as follows:
“No. 1. If you believe from the evidence that the grade fixed at Kansas City upon the oats involved in this lawsuit was so erroneous or so far from the true grade as to be the result of a gross mistake, your verdict will be for the plaintiff.”
It will be noted by reading the contract, which we have copied in our statement of facts, that the parties have agreed upon an inspection at Kansas City, Mo., on the grades and the weights. According to the terms of the contract, when that inspection determined that the oats were of the quality ordered, the plaintiff became bound by its agreement to áceept and pay for them at Little Bock, Ark.
Counsel for the defendant claimed that the instruction was erroneous because the mistake which will justify an impeachment of the grain inspector’s decision is not mere error of judgment, but is the kind of mistake which amounts to fraud. They rely upon the-principles of law decided by this court in the following cases: Hot Springs Ry. Co. v. Maher, 48 Ark. 522; Ozan Lumber Co. v. Haynes, 68 Ark. 185; Carlile v. Corrigan, 83 Ark. 136, and Lanier v. Little Rock Cooperage Co., 88 Ark. 557, and other cases of like character.
In the first cited ease it was held that, where parties agree that all questions relating to the quality, quantity or manner of construction of work to be done shall be decided by an engineer in charge of the work, and that his decision shall be final and conclusive, his decision cannot be questioned by either party except for fraud or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment. The court said that the instructions were misleading and prejudicial because they did not tell the jury that the errors or mistakes which would avoid the decisions or estimates of the engineer must have been so gross or of such nature as necessarily implied bad faith upon the part of the engineer.
In the application of this principle in the second case cited, the court said that the same rule would apply in case of an agreement for scaling lumber, and held that the correctness of the scaling may be impeached by cor-. rect scaling elsewhere, but that evidence must be sufficient to show fraud or such gross mistake as would1 necessarily imply bad faith or a failure to exercise an honest judgment.
The instruction under consideration is erroneous and prejudicial because it fails to tell the piry that the mistake must be of such a character as to show fraud or bad faith in the inspection of the grain. The omission of the court in this respect is emphasized by instruction No. 2, which was asked by the defendant and given as modified by the court. The instruction as modified is as follows:
“You are instructed that the burden of proof is upon the plaintiff in this case; that is to say, it must establish the allegations of its complaint by a preponderance of the evidence; and that, even though you may find that the oats in question were by mistake graded by the inspector at Kansas City as No. 3 white oats, nevertheless, unless you further find from a preponderance of the evidence that said oats were No. 4 white oats, and that the said inspector by mistake misgrad'ed said oats as No. 3 white oats, then your verdict must be for the defendant.”
The modification of the instruction by the court consisted in eliminating from it the submission of fraud or bad faith of the inspector at Kansas City in grading the oats. The error thus committed was material and must be considered as ground for reversal because, under the testimony for the defendant, the inspection at Kansas City was honestly and correctly made. According to the testimony of the defendant, the inspection was correctly made under the contract, and no bad faith could be imputed to it in any respect whatever.
In view of another trial, we do not pass upon the legal, sufficiency of the evidence to support a verdict for the plaintiff.
For the error in giving instruction No. 1 for the plaintiff and in giving instruction No. 2, as modified, the judgment will be reversed, and1 the cause remanded for a new trial.
