Weed v. Dyer

• Citation: 13 S.W. 592,53 Ark. 155
• Parties: WEED v. DYER
• Decision Date: 19 April 1890
• Court: Supreme Court of Arkansas

13 S.W. 592

53 Ark. 155

WEED v. DYER

Supreme Court of Arkansas

April 19, 1890

APPEAL from Yell Circuit Court, Dardanelle District, G. S CUNNINGHAM, Judge.

At the spring term, 1888, of Yell circuit court, Weed, Parsons & Co., publishers at Albany, N.Y. sued Dyer & Hallum on an acceptance for $ 800, given in part payment for printing and binding 1000 volumes of a book for Hallum. The written contract stipulated that the pages should contain forty-two lines, and specified that the binding should be "full law sheep." The price of the paper, printing and binding was agreed upon, but certain items were left to be settled for as extra work. Afterwards the size of the page was changed, with Hallum's consent, from forty-two to thirty-nine lines, but Hallum claims that plaintiffs told him that the alteration would not increase the cost. Before delivery of the books, plaintiffs presented a statement of defendant's account, showing the cost of the paper printing and binding, and of the extra work. Defendant approved the account, but, as he says, "reserving right of correction if wrong." On October 13, 1887, Hallum and Dyer signed the draft sued upon. The books were received in a few days. Defendants did not notify plaintiffs of any defect in the binding or of any mistake in the account as stated. Defendants in their answer alleged that the alteration in the size of the pages entailed an additional cost of $ 102.77, as shown by plaintiffs' statement; that the books were shipped while "green" and thereby were damaged $ 1.50 per volume; that plaintiffs had charged $ 200.00 for extra work that was worth $ 50.00, and had omitted a credit of $ 29.82 due defendants. The court refused the following instructions asked by plaintiffs, viz: "(1) If the jury believe Hallum was the real party in interest, and that Dyer was concerned in the matter only for the purpose of securing the price of the books; and if you further believe Hallum was at Albany, N.Y. and examined the proofs, and by his silence or otherwise, consented to thirty-nine instead of forty-two lines to the page, then he waived that part of the written contract, and is not entitled to recover any damages on account of the books having been published with a less number of lines to the page. (2) If you find there was any defect in the binding of the books, and that the defect was of such a character that ordinary prudence and examination would have discovered it, and defendants accepted the books and used or sold them, or part of them, without notifying plaintiffs, or offering to return them, so that plaintiffs could comply with the contract, then you will find for plaintiffs in the full sum sued for. (3) If the jury find that, when Hallum was at Albany, N.Y. plaintiffs delivered him a statement of the account, showing an extra charge for printing additional pages and portraits, and made no objection to the claim, he is now estopped to deny the account." The court then gave on its own motion a modified instruction, by striking out all after the word "claim" in the one last above, and substituting the words, "the law presumes that the account was correct, but presumption may be removed by evidence." The court then gave two instructions, at request of defendant, to the effect that if they found the work was not done according to contract, and defendants were damaged by reason of its defective execution, they would credit defendants with the difference of the work as contracted for and as delivered. To the giving of all of which, exceptions were saved. There was verdict and judgment for plaintiffs for $ 75 and costs.

Reversed and remanded.

Marshall & Coffman for appellants.

1. The written contract contained no warranty as to binding, except that it was to be in "full law sheep," and none could be imported into it by parol. Benj. on Sales, pp. 570, 609 and cases cited; 38 Ark. 334.

2. The promise of plaintiffs by letter to make good any defects of binding was subsequent, voluntary and not binding. Benj. Sales (Bennett's Ed.), pp. 564, 607, 626.

3. 24 Wis. 640, stands alone in holding that an implied warranty of merchantability may be proved outside of the written contract, if the property be capable of inspection.

4. The court erred in overruling the second instruction asked by plaintiffs. 38 Ark. 334.

5. The last instruction should have been given, there being no claim of fraud or mistake. 41 Ark. 502; 1 S. C. Rep., 178.

6. The first instruction asked by plaintiffs should have been given. 50 Ark. 193; 33 Ark. 465. Written stipulations may be waived by the conduct of parties, and the parties estopped by their acts from claiming what would otherwise have been their rights. Supra.

7. It was no excuse for Hallum to say he did not read the account endorsed as correct. 1 So. 892.

John Hallum, pro se.

1. Only a general exception was made to the charge. It did not designate any specific part as objectionable, and must be disregarded. 50 Ark. 348; 44 Ark. 213. There was no exception to the evidence. 44 Ark. 213.

2. The defense was recoupment, which is well settled. 22 Ark. 244.

A failure of consideration, total or partial, or a breach of warranty, fraudulent or otherwise, may be relied on as a defense.

OPINION

HEMINGWAY, J.

The court declined to give two instructions asked on behalf of the appellant, and gave one of its own motion; its action in each particular is relied upon as ground for reversal.

1. It may be that the first of the instructions refused correctly stated the law on a state of case to which it was applicable; but, as the appellee was not seeking to reduce the price to be paid according to the terms of the contract, and only resisted the attempt of appellant to increase such price on account of a change in the contract, it was not a proper instruction to be given in this case. Although Hallum knew and consented to the change, he was informed by appellant, as he says, that it would not increase the cost of the book; he is therefore not estopped by such knowledge, to decline to pay the increase claimed.

2. The second of the instructions refused presents a question which has not been expressly adjudicated by this court.

In Plant v. Condit, 22 Ark. 454, the court ruled, that for breach of warranty of soundness the vendee may make his election to rescind the contract,...