| Ark. | Feb 26, 1923
(after stating the facts). It is insisted by counsel for the plaintiff that the court erred in giving instruction No. 1 at the request of the defendant. The instruction reads as follows:
“You are instructed that if you find that the plaintiff failed to comply with the contract in that he failed to. pay the defendant for work done under the contract as required by the terms of the contract, then the defendant had the right to treat the contract as null and void, and your verdict will be for the defendant.”
The instruction is erroneous because it gives the defendant the right to recover if the plaintiff failed to pay him for the land which he had already cleared, regardless of the fact of whether or not the defendant committed a breach of the contract on his part. The contract provides that the clearing of the land should be completed by .April 1, 1918, by the defendant. It appears from the letters passed between the parties that the time for the performance of the contract was extended until January, 1920. The undisputed'evidence shows that sixty-five acres of the land remains to be cleared, and, according to the testimony of the plaintiff, the defendant did not in all respects comply with the terms of' the contract in the land which he did clear.
Then too, according to the plaintiff’s testimony, the defendant did not demand payment for the land which he had cleared until some time after the time limit for finishing the clearing had expired. If the defendant committed a breach of the contract oil his part by not clearing the land, the plaintiff would be entitled to recover damages on this account, and might offset the amount which was due the defendant for work already done by the damages which he was entitled to recover from the defendant for the non-performance of the contract by the defendant. In this connection it may be stated that the damages claimed and testified to by the plaintiff for the alleged breach of the contract by the defendant would amount to more than the amount allowed the defendant by the verdict of the jury. Hence the court erred in giving this instruction.
In view of another trial of the case we call attention to the fact that instruction No. 3, given by the court at the request of the plaintiff, is erroneous, although no assignment of error is predicated upon the action of the court iii giving this instruction. The instruction reads as follows :
“You are instructed that if you find that the parties made and entered into the written contract sued on in this case, the defendant cannot, under the law, excuse a breach of said contract by setting up a different and verbal contract claimed to have been made by the defendant with the plaintiff at a different time and subsequent to the written contract sued on.”
It is well settled in this State that no rule of evidence is violated by allowing proof of a subsequent parol agreement changing the terms of a prior written contract. Caldwell v. Dunn, 156 Ark. 126" date_filed="1922-12-04" court="Ark." case_name="Caldwell v. Dunn">156 Ark. 126..
In view of a new trial of the case and the fact that additional testimony may be introduced by the parties, we do not pass upon the assignment of error that the evidence is not sufficient to support the verdict.
For the error in instructing the jury, as indicated in the opinion, the judgment must be reversed, and the cause remanded for a new trial.