115 Ark. 339 | Ark. | 1914
(after stating the facts).
In 1. Corpus Juris, § 20, page 363, it is said: “Mere readiness to perform is insufficient, and while there are a few decisions which seemingly hold an accord, with tender of performance and refusal to accept, is equivalent to satisfaction, and may be so pleaded in bar of the action on the original claim, the great weight of authority is directly to the contrary. The majority of decisions are to the effect that tender of performance is in no case equivalent to performance and, therefore, not a satisfaction of the original obligation. Nothing short of actual performance, meaning thereby performance accepted, will suffice. But this rule, as is elsewhere shown, would not apply in a case where a new agreement or promise, instead of the performance thereof, is accepted in satisfaction.”
And sections 21 and 22, page 364, of the same authority read as follows :
“Sec. 21. Accord and part performance do not constitute satisfaction. It is merely executory so long as by its terms something remains to be done’in the future. If performed in part only, the original right of action remains and the party to be charged is allowed what he has paid in diminution of the amount claimed.”
See also North State Fire Ins. Co. v. Dillard, 88 Ark. 476; Grimmett v. Ousley, 78 Ark. 304.
The instruction was properly refused.
Instruction No. 3, asked by 'appellant, is conceded to be a correct declaration of the law; but it is urged that it was not asked in apt time.
“5. "When the evidence is concluded, either party may request instructions to the jury on points of law, which shall be given by the court, which instructions shall be reduced to writing if either party require it. ’ ’
The sixth subdivision relates to the argument before, the jury. •
"We think the trial judge has the discretion to require that the instructions be settled before the argument begins and, as a means to this end, may require any special request for instructions to be made before the opening of the argument. Of course, this discretion is not an absolute cue, for questions might be raised in the ■argument which would necessitate additional instructions by the court.
At the conclusion of the court’s instructions, appellant requested the court to give the instructions which it asked, except its instruction numbered 3, which last was not asked until after the opening argument had beeu made for appellee. The court refused to give these instructions, but granted permission to appellant to reduce them to writing. In the meantime, a controversy arose over a statement said to have been made in the opening argument in appellee’s behalf, to the effect that the offer of compromise on the part of appellant was an admission of its liability. This argument is not reported iñ the transcript, but the record does show that this controversy arose, and the instruction was asked as soon as it arose and was, therefore, asked in apt time.
For the error in refusing appellant’s third instruction, £he judgment will be reversed and the cause remanded.