Graves v. Melia

• Decision Date: 07 January 1907
• Citation: 99 S.W. 80
• Parties: GRAVES et al. v. MELIA.
• Court: Arkansas Supreme Court

99 S.W. 80

GRAVES et al. v. MELIA.

Supreme Court of Arkansas.

January 7, 1907.

Appeal from Circuit Court, Phillips County; Hance N. Hutton, Judge.

Action by Joe Melia against F. T. Graves and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Bevens & Mundt, for appellants. R. W. Nicholls and W. G. Dinning, for appellee.

WOOD, J.

The only questions presented for our consideration are:

First. Whether or not there was a breach of the contract by appellants? This question was properly submitted to the jury, and, while the evidence tending to show a breach is not very satisfactory to us, we are of the opinion that there was legally sufficient evidence to sustain the verdict.

Second. Appellants contend that, if there was a breach of contract by appellants, such breach was waived by appellee, and on this theory of the case they presented prayer for instruction No. 2, and urge that the refusal of the court to give it was error for which the judgment should be reversed. The court did not err in refusing this prayer for instruction. Under the pleadings and proof there was no question of a waiver of a breach of the contract by appellee in the case. The only issue presented was whether or not there had been a breach of the contract. No objection is made here to the charge of the court as given. But, if the question of waiver was an issue in the case, still the prayer as asked was erroneous under the proof, because, if there was a breach of the contract by appellants in refusing to receive the potatoes from appellee, then the fact that appellee, after such breach, continued to deliver, and appellants to receive, potatoes until the appellee refused further to deliver, was not. It was the duty of appellee, if there was a breach of the contract by appellants, to dispose of the potatoes he had on hand after and by reason of such breach for the best price obtainable, and in the most expeditious manner possible in the exercise of reasonable care, and it was no waiver because in the disposition of the potatoes he had on hand he continued to let appellants have potatoes without objecting to the size of the amount that appellants were receiving. If appellants had breached the contract, they had no right to suppose that appellee by thereafter delivering them potatoes was waiving any of his rights under the contract. Such conduct would rather than otherwise tend to show an intention on the part of appellee to insist on his rights under the...