Johnson v. Hughes

McCuleoch, J., (after stating the facts.) 1. The written contract between the parties was complete, and it was not competent to engraft upon it a warranty resting in parol. Lower v. Hickman, 80 Ark. 505. 2. The third and fourth instructions requested by appellants were properly refused because the evidence does not show that appellants shipped the tank to the American Tank & Fixture Co., or that appellees had any notice of any shipment to that concern or authorized such shipment to that concern.' 3. It is contended on behalf of appellants that the agreement of appellees to accept a return of the tank operated as a rescission of the contract, and that appellees could not thereafter sue upon the contract for the price, whether the tank was returned or not. They contend that after such rescission they (appellants) held the tank as bailees, that appellees’ only remedy was to sue for conversion, and that there can be no recovery in this action for the conversion, as that would change the form of the action from contract to tort. We do not -think the contention is sound. The proposal of appellees to accept a return of the tank for exchange did not rescind the contract. It only gave appellants the right to ship the tank back for exchange for another, and, until complied with by shipment of the tank, did not release them from liability for the price. Affirmed.