53 Ark. 155 | Ark. | 1890
The court declined to give two instructions asked on behalf of the appellant, and gave one of its own motion; its action in each particular is relied upon as ground for reversal.
1. It may be that the first of the instructions refused correctly stated the law on a state of case to which it was applicable; but, as the appellee was not seeking to reduce the price to be paid according to the terms of the contract, and only resisted the attempt of appellant to increase such price on account of a change in the contract, it was not a proper instruction to be given in this casé. Although Hallum knew and consented to the change, he was informed by appellant, as he says, that it would not increase the cost of the book; he is therefore not estopped by such knowledge, to decline to pay the increase claimed.
2. The second of the instructions refused presents a •question which has not been expressly adjudicated by this court.
In most cases, the buyer, when he discovers that the quality of the goods is inferior to that warranted, would feel impelled by a sense of right and fair dealing to notify the seller of the fact, (1) that he might satisfy himself of its existence, (2) that he might cure it. But in many cases this course might be found impracticable or even impossible; and, while the failure might be a circumstance for the jury to consider in ascertaining if there was in fact a breach of warranty, it could not defeat the recoupment if the breach was proved. How far such failure should weigh with a jury would vary with the circumstances of each case, and in all cases be a matter for their determination. Benj. on Sales, sec. 900; Lewis v. Rountree, 78 N. C., 323; Brantley v. Thomas, 22 Tex., 270; Flint v. Lyon, 4 Cal., 17.
The instruction given permitted the defendant to contest the validity of the various items of the acccount for any reason that would have been availing if there had been no statement of it, and in this there is prejudicial error.
If there was an account stated without fraud or mistake, the appellant is entitled to the amount thereof, subject to deduction for any damage Hallum may have sustained by breach of contract as to the quality of the books.
Reverse and remand for new trial.