Tennison v. Hanson ( 1920 )

Hast, J.

(after stating the facts). The plaintiff sought to recover in the action on the theory that Hanson abandoned the performance of the contract before the insolvency of Scott Bros., and that he did not intend to deliver the cotton under the contract. The facts are in conflict on this point, and this question was properly submitted to the jury under appropriate instructions.

Counsel for the plaintiff assign as error the refusal of the court to instruct the jury that it was the duty of Hanson to tender to plaintiff the cotton embraced in the contract, and that, if he failed to do so, he would be liable in damages to the plaintiff.

The court was right in refusing to give this instruction. It made the defendant guilty of a breach of the contract if he failed to tender the cotton to the plaintiff, regardless of the fact of whether or not plaintiff was able to carry out the contract.

According to the testimony of Hanson, he had been informed by the Arkansas representative of Scott Bros, that that firm had become insolvent, had ceased to do business, and would be unable to carry out its contract. This being true, it would have been a vain and idle thing for Hanson to have tendered the cotton to Scott Bros, under the contract. If Scott Bros, were unable to carry out the contract, no useful purpose could have beeii served by Hanson tendering to Scott Bros, or the plaintiff the cotton under the contract.

It is next insisted that the court erred in refusing to instruct the jury that if it should find from the evidence that Hanson on the 23d day of September, 1916, did not have the September cotton and did not intend to deliver the same, it should find for the plaintiff. There was no error in refusing to give this instruction. Hanson had all of September in which to buy the cotton under the first contract. He had 142 bales on hand on the 23d of September, 1916, and said that he could have gotten the balance by the end of the month. The court had no right to limit his time of procuring the cotton to the 23d day of September, 1916, when his contract gave him the whole of that month. Hence the instruction would have been confusing and misleading to the jury and the court properly refused to give it. All of the instructions refused by the court contained this same vice, and there was no error in refusing them.

Counsel also complain that the court erred in giving an instruction ashed by the defendant. We need not consider this assignment of error; for no exceptions were saved at the trial to the giving of it, and under our familiar rules of practice any objection to it will be deemed to have been waived.

The judgment will be affirmed.