Rock-Ola Mfg. Corp. v. Farr

• Decision Date: 23 April 1956
• Docket Number: No. 5-905,ROCK-OLA,5-905
• Citation: 226 Ark. 279,290 S.W.2d 2
• Parties: MANUFACTURING CORPORATION, Appellant, v. Lynn FARR, d/b/a Lynn Farr Music Company, Appellee.
• Court: Arkansas Supreme Court

Page 2

290 S.W.2d 2

226 Ark. 279

ROCK-OLA MANUFACTURING CORPORATION, Appellant, v. Lynn FARR, d/b/a Lynn Farr Music Company, Appellee.

No. 5-905.

Supreme Court of Arkansas.

April 23, 1956.

Rehearing Denied June 4, 1956.

Arnold & Arnold, Texarkana, Arvey, Hodes & Mantynband, Chicago, Ill., for appellant.

Shaver, Tackett & Jones, Texarkana, for appellee.

WARD, Justice.

Appellant, Rock Ola Manufacturing Corporation, filed a complaint against appellee, Lynn Farr, d/b/a Lynn Farr Music Company, upon the following allegations: Appellee executed to appellant a note for $2,296.83 on April 4, 1953, [upon which note three payments were made] and also a note for $864.72 on August 20, 1953; Both notes are past due, and demand for payment has been made, and; Appellee has failed and refused to pay. The prayer was for judgment on the notes for the balance due with interest, costs, and attorney fees [as provided in said notes]. For answer, appellee admitted the execution of the notes, but denied all other allegations, and for other defenses stated: (a) The notes were executed for three automatic record phonographs [and related equipment] which appellant warranted to be fit for the purpose intended, but which were not, and; (b) In connection with the purchase of said merchandise appellant promised appellee an exclusive dealership in specified territory but failed and refused to carry out said promise.

After the introduction of testimony by both sides, the issues were submitted to a jury, under the court's instructions, and the jury returned a verdict in favor of appellee. Appellant now prosecutes this appeal.

For a reversal of the judgment in favor of appellee, appellant sets out three points, all of which amount to a contention that there is no substantial evidence to support the verdict of the jury.

After a careful examination of appellant's abstract and the testimony set forth therein [together with the testimony abstracted by appellee], we have reached the conclusion that (a) a jury question was raised by the testimony, and, further, that (b) appellant did not make objections in the trial court adequate to raise, on appeal, the question of the sufficiency of the evidence.

(a) Since we are affirming the judgment of the trial court on two grounds, as indicated above, it would serve no useful purpose to set out the testimony at length. It suffices to point out: The record, as abstracted, shows appellee defended on the ground of fraud in that his purchase of the merchandise was a part of an oral agreement, whereby appellant was to give him an exclusive dealership in a specified territory in Arkansas and Texas, and that appellant failed and refused to carry out this promise; The testimony clearly supports the above defense, and; The only disputed question of fact is whether appellee waived appellant's breach of contract by using, and making payments, on the machines after the knew of the breach. While the question is a close one, we cannot say, as a matter of law, that there was no substantial evidence to support the jury's verdict.

(b) Appellant's abstract does not show that any proper motion or objections were presented to the trial court to raise, here, the question of the sufficiency of the evidence to support the jury's verdict.

No instructions or objections thereto and no motion for an instructed verdict at the close of the testimony were shown. Thus, appellant allowed the issues to be presented to the jury without making any objection. Not only did appellant allow the fact issues to be presented to the jury, but, by reference to the record [not abstracted], we find appellant requested instructions [given by the court] on the questions of fraud and breach of warranty. By such action appellant waived the question of the sufficiency of the evidence. See Bank of Hatfield v. Clayton, 158 Ark. 119, 250 S.W. 347, 349. In this case we said:

'It is further insisted by counsel that appellant, by requesting the court to give instructions submitting the issues to the jury, not only waived the error in submitting the issues at the request of appellee, but waived the right to assign as error the insufficiency of the evidence to support the verdict. Counsel is correct in the first contention, for we have often held that a request for an instruction submitting an issue operates as a waiver of the error in giving an abstract instruction on the same issue'.

In St. Louis, Iron Mountain & Southern Railway Co. v. Jacobs, 70 Ark. 401, 68 S.W. 248, 250, it was stated:

'The questions as to whether or not the provision was reasonable and fair, requiring suit to be brought within 90 days after the injury, and whether or not such provision had been waived by appellant, was submitted to the jury upon the evidence at the request of appellant. Appellant, therefore, cannot now complain of the verdict on these questions'.

Again, in Berman v. Shelby, 93 Ark. 472, 125 S.W. 124, 126, this court said:

'Appellant in his prayer for instruction number 11, asked the court to submit to the jury the question as to whether or not appellees had waived the right to cancel the lease because of any failure that might have been on the part of appellant to put the water heater in the bathroom. Appellant therefore cannot complain of the finding of the jury that there was no such waiver'.

We find the same announcement in Morris v. Raymond, 132 Ark. 449, 201 S.W. 116, 118, in these words:

'We need not consider whether or not there was sufficient testimony to establish the allegations of undue influence; for, as we have already seen, both parties asked for instructions on this question, and appellant cannot now complain that there was no testimony upon which to predicate such instructions'.

We note further however it was held in the Clayton case, supra, and in Missouri Pacific Railroad Co. v. Lamb, 195 Ark. 974, 115 S.W.2d 864, that even where no motion for an instructed verdict was requested, the point could be raised in a motion for a new trial which questioned the...