89 Ark. 24 | Ark. | 1909
Lead Opinion
(after stating the facts.) Counsel for appellant insist that the court erred in refusing to give the following instruction: “The contract between plaintiffs and defendant, containing, among other things, a clause providing for the payment by the plaintiffs to the defendant of a twenty per cent, penalty as liquidated damages in case of the refusal or failure of plaintiffs to carry out said contract, and said contract being in writing, in order for plaintiffs to avail themselves of any release from the provisions' of said twenty per cent, penalty clause, they must show -either that J. D. Burris, the -agent of the defendant, had written authority from the defendant -to make such- release, or that such release, so claimed to have been made by the said J. D. Burris, was afterward ratified in writing by the defendant.”
The alleged error, they say, consists in the action of the court in permitting appellees to introduce oral testimony of a waiver by appellant of the twenty per cent, clause of the contract; that, the contract being in writing, the waiver or release must be evidenced by an instrument in writing. No objection to the introduction of the parol testimony to- establish the waiver was made at the trial of the case in the court below. Besides, the testimony was competent.
A waiver of a warranty in a policy of insurance may be proved by parol evidence. Sprott v. N. O. Ins. Ass’n, 53 Ark. 215; Ins. Co. v. Brodie, 52 Ark. 11. The reason for the rule is that the forfeiture clause is for the benefit'of the insurance company, and the waiver is not repugnant to the written agreement, because it is only the exercise of an option which the agreement left in it. So in the present case the penalty clause was for the benefit of appellant, and was enforcible at irs option, and the facts in regard to its waiver thereof were provable by parol as well as by written evidence.
Counsel for appellant also predicates error in the action of the court in giving instructions numbers one and two to the jury. No exceptions were saved to the giving of these instructions, and under the rules of the court they can not now be considered.
Counsel for appellants also complain of the action of the court in giving instruction number three as follows: “You are instructed that, upon the item of claim made by defendant for freight paid on goods bought of plaintiffs, there is no proof to sustain the same, and in making up your verdict you will not take this item into consideration.” J. A. Clifton testified that after the fire appellees and J. D. Burris came to him and sold to him the car of implements which Rankin Bros. & Winn, appellees, had bought. That he paid the price they were to pay and all freight, and that the company lost nothing on the car. His testimony was uncontradicted, and was all the testimony on that phase of the case. Hence there was no error in giving the instruction.
The record shows that the case was submitted to the jury under proper instructions of the court, and their finding upon the disputed questions of fact is binding upon us.
Finding no prejudicial error in the record, the judgment is affirmed.
Rehearing
ON REHEARING.
Opinion delivered February 1, 1909.
Counsel for appellant urges that the court erred in holding that a release of'the twenty per cent, claimed as damages for the forfeiture of the contract could be shown by parol evidence. In addition to the authorities cited in our original opinion, this court, in the case of Burlington Ins. Co. v. Lowery, 61 Ark. 108, in discussing the waiver of a forfeiture in a contract of insurance, held that “proof of loss under a fire policy may be waived by parol, though the policy requires a waiver to be in writing.” See also St. Louis Southwestern R. Co. v. Grayson, post p. 154; American Fire Ins. Co. v. Dannehower, post p. 111. The twenty per cent, damage clause was inserted in the contract for the benefit of appellant, and may be waived or released by it at its option. It is a well settled general rule that such waiver or release may be shown by parol evidence.
Counsel for appellant calls our attention to the fact that we failed to pass upon two instructions, for the reason that no exceptions were saved to them at the trial.
The numbers of the instructions as given :by the trial court and as they appear in the record were different, and on account of this transposition of the numbers we made the mistake. One of them is instruction number two, which reads as follows:
“You are instructed that upon the item of expenses claimed by defendant for trip of their agent to the city of Russellville, amounting to $65.15, the proof does not sustain the same, and in making up your verdict you will not take the same into consideration.”
There was no error in refusing this instruction because there was no evidence upon which to base it.
Instruction number one reads as follows: “In this case the defendant makes claim of plaintiffs for the sum of twenty per cent, claimed upon a forfeiture of a contract of the sale of goods' by defendant to plaintiffs, and upon that question the court instructs you that if you find from the testimony that the plaintiffs did so refuse to receive or accept said car of goods, and that thereby the defendant is entitled to receive said twenty per cent, as damages, then upon this item your verdict will be for the defendant ; but if you. find that said car of implements when shipped reached the city of Russellville when plaintiffs had been burned out and had no place to unload such car, and that they, with the agent of defendant, arranged for other parties to take said car without damage to defendant, and that such arrangement was agreeable to and accepted by defendant, then your verdict will be for the plaintiff on this item.”
Counsel correctly says that it is the duty of the court to declare as a matter of law the effect of a violation of the provisions of a contract. He insists that the statement, “and that thereby the defendant is entitled to recover said twenty per cent, as damages,” coming from the court as it did in the instruction, was likely to mislead the jury. This is an objection to the phraseology of the instruction that should have been specifically made at the trial. He should have pointed out the defect in form and asked a specific instruction correcting it, instead of contenting himself with a general objection. The instructions should 'be considered as a whole, and, when so considered, we think the meaning of the court was clear. St. Louis, I. M. & S. Ry. Co. v. Hardie, 87 Ark. 475; St. Louis S. W. Ry. Co. v. Leder, 87 Ark. 298. We do not think that the jury was misled by it. Other ¡instructions were given which made it clear that the court meant to tell the jury that if they found the appellees refused to accept the car of goods the appellant was entitled to recover the twenty per cent, as damages.
Counsel also contends that the instruction is objectionable for the reason that the court assumes facts which there is no evidence tending to prove. We do not tfiink so. The statement of facts upon which the instruction was predicated was testified to by Rankin, one of the appellees.
The motion for rehearing is denied.