Felsberg v. Moore

Wood, J., (after stating the facts.) Appellant contends that there is no evidence of a willingness on the part of appellee to comply with his contract, shown by a tender of the amount of the purchase money due under the contract, or by an offer to pay same when the lumber was offered for delivery, or when it should have been delivered. Appellant did not request specific instructions covering this phase of the case, which he presents here for the first time. He it not therefore entitled to reversal on that ground, even if the proof had warranted the giving of such requests. St. Louis, I. M. & S. Ry. Co. v. Barnett, 65 Ark. 255; State Mutual Ins. Co. v. Latourette, 71 Ark. 242; Newton v. Russian, 74 Ark. 88; Schenck v. Griffith, 74 Ark. 557; Williams v. Bennett, 75 Ark. 312. But, under the plain terms of the contract, appellant could not justify a failure to deliver the lumber on the ground that appellee had not tendered or offered in advance to pay the purchase price. The lumber was to be paid for “as delivered.” The most that can be said of this language is that it contemplated that the delivery and payment should be concurrent acts, not that payment should precede delivery. But the uncontroverted proof is that there was no delivery in this case, and hence no tender of payment was called for. Under the most favorable view of the evidence for appellant, he was only ready, and offered to deliver, but was prevented from doing so by appellee’s refusing to accept. On the other hand, the proof on behalf of appellee warranted a finding to the effect that appellant refused to allow appellee to inspect the lumber when it was offered, and, therefore prevented, by his own cdnduct, the acceptance of the lumber b)r appellee. Under these circumstances, we do not see that the question of a tender or offer to pay the purchase money was an issue in the case. We find no error in instructions seven and ten. Indeed, the charge of the court as a whole was a full and fair presentation of the law applicable to the issues. There was ample evidence to sustain the verdict. The judgment is correct, and is affirmed.