Carpenter v. Crow , 77 Ark. 522 ( 1906 )

McCulloch, J.,

(after stating the facts.) The court erred in declaring the law and giving the peremptory instructions to the jury to return a verdict for the defendant.

Plaintiffs’ agreement to allow a rebate of $300 on the notes was upon condition that Tuller and the Creamery Company should faithfully perform the contract for the sale of milk, and there was testimony sufficient to go to the jury that they had failed to do so. The milk contract stipulated only that the milk and cream should be “fresh and of the morning’s milking of each day;” but, it being an article of food, and plaintiffs having no opportunity to inspect it, there was an implied warranty that it should be fit for use. Truschel v. Dean, post p. 546; Bunch v. Weil, 72 Ark. 343; 2 Mechem on Sales, § 1358.

Furnishing impure milk was not a compliance with the contract, and the jury should have been instructed that, if there had been a default in the performance of the contract in this respect, the defendant was not entitled to the rebate.

It is, however, contended on behalf of appellee that appellants, by continuing to accept the milk and pay for it weekly until the term mentioned in the contract expired, waived the right to refuse the rebate on account of the quality of the milk furnished. It is argued that appellants should have refused to accept the milk, declared the contract of sale forfeited, and re-claimed the cattle; otherwise, they are deemed to have waived the right to object to the breach of the contract in this respect. This is not sound. Appellants had a right to accept the milk without waiving the breach of warranty of its quality, and they have a right to refuse to allow the rebate because of the breach. McDonough v. Williams, ante p. 261, and cases cited.

The milk contract and the agreement for rebate on the purchase notes were separate and distinct contracts, and appellants, by accepting a quality of milk below the standard required by the contract, did not waive their right to insist that the conditions upon which they had agreed to allow the rebate had not been performed, nor did their acceptance of the milk estop them from saying that the conditions upon which they had agreed to allow a rebate had not been performed, nor was it an election on their part not to insist upon a breach of the contract. Counsel argue with much earnestness that the plaintiffs are estopped from claiming a breach of the contract, but we see nothing in this case upon which the doctrine of estoppel can be invoked, so far as the right to refuse the rebate is. concerned. Appellee admits that he knew, when he purchased the cattle, the condition upon which the rebate was promised, and the proof shows, if it establishes a breach of the contract at all, that the breach was committed by him after he purchased the cattle from Tullen That being true, how can he plead an estoppel?

It is different, however, as to appellant’s right, upon payment in full of the purchase notes by appellee, to claim a forfeiture and retake the cattle on account of the breach of the milk contract. The acceptance of payments of the notes after the breach of the milk contract was a waiver of the right to insist on the forfeiture. It would be manifestly unjust to allow appellants to continue to accept payments on the notes and at the same time insist that no title to the cattle passed because of the breach of implied warranty as to quality of the milk furnished. As we have already stated, appellants did not, by acceptance of the milk and making payment therefor, waive their right to refuse the promised rebate on the notes, nor their right to sue for damages for breach of the implied warranty of the quality of the milk, but by acceptance of payment of the notes they did waive their right to insist that no title passed because of the alleged breach of warranty.

The court erred in giving a peremptory instruction to the jury, but should have submitted the case to the jury upon proper instruction as to whether or not there' had been a breach of the implied warranty of the quality of the milk furnished under the contract. If there has been such a breach, appellee is not entitled to the rebate of $300 on the notes, as the agreement for allowance of the rebate is conditioned upon a performance of the milk contract; and if it has not been performed, the verdict should be for appellants, because, according to the contract of sale, no title passed until the purchase notes should be paid in full. In other words, if the jury find that there has been a breach of the implied warranty as to the quality of milk furnished, then appellee is not entitled to the rebate of $300, and must pay the full amount of the purchase notes before he can defeat appellant’s right to recover the property. But appellants, by acceptance of the milk and the payments made by appellee on the notes, are deemed to have waived their right to retain title until the alleged damages arising from such breach of warranty be paid, and they must recover such damages in a separate action brought for that purpose.

Reversed and remanded for new trial.