Wood v. Planters' Oil Mill , 76 Ark. 570 ( 1905 )

Wood, J.,

(after stating the facts.) The cause, as we view the undisputed proof, was presented to the jury upon an erroneous theory. The instructions for appellee were not grounded upon the undisputed evidence. The second instruction assumes that it was the duty of appellant to have exercised reasonable diligence to sell the seed “upon receipt of notice óf the defendant’s (appellee’s) refusal to accept them.” There is no contention, either in the pleadings or the proof on the part of appellee, that it refused to accept the seed in-a manner to breach the contract. It denies any breach, and claims that the notice to appellant of its inability to receive the seed was merely a postponement of the delivery until such time as it could safely receive them, and that appellant acceded to this; and appellant makes no claim, as we understand his evidence, that the contract was broken by appellee until it had directed appellant to sell the seed, and had thus indicated its intention not to receive them. The direction to appellant to sell, according to the evidence on both sides, was some ten days or two weeks after the written notice and request to appellant to delay the delivery of the seed. So this instruction is not based on the evidence.

Number three for appellee was erroneous for the same reason. The proof on the part of appellant shows that he did not claim a breach of the contract by appellee until it refused to accept the seed and directed him to sell same, promising to save him from loss. The second and third instructions for appellee seem to be predicated upon the theory that the written notice from appellee to appellant might be treated as a breach of the contract. There is nothing in the proof to justify this. Neither side claims this as a breach, and it certainly could not have been the duty of appellant to sell the seed until there was a breach of contract, and appellee could not complain of a failure to make a sale when there was no failure, and when the sale was made by the direction and consent of appellee.

Instruction number five is likewise abstract and erroneous for the lack of evidence to support it. If it could be said that appellant, by failing to object to the evidence, if any, tending to show a waiver of breach of contract, thereby consented that such issue might be presented, although not raised by the pleadings, still the instruction was erroneous in telling the jury that if appellant “by his silence or conduct led Bentley to believe,” etc. There is no evidence of a waiver of breach by silence. Nor indeed, if there was a breach of contract, is this a case where it was waived by silence. It nowhere appears that silence of appellant, if he was silent, changed in any manner the status of appellee after the alleged breach occurred. It is not shown wherein appellant was in duty bound to speak, in order to prevent some financial loss to appellee. Pox v. Drewry, 62 Ark. 316.

If appellee violated the contract, it would require something more than mere silence upon appellant’s part to constitute a waiver thereof, under'the facts as disclosed by this record.

For the errors pointed out the judgment is reversed, and the cause is remanded for a new trial.