Thomas Cox & Sons Machinery Co. v. Forshee

Hart, J. (after stating the facts.) The errors complained of -by counsel for appellant, both on account of the introduction of testimony and in the instructions given, as to the measure of damages sustained by appellees by reason of their alleged counterclaim, will not be considered by the court. As insisted by counsel for appellee, no exceptions were saved to the -testimony of appellees upon this point. American Insurance Co. v. Haynie, 91 Ark. 43. Besides the errors complained of, both in regard to the introduction of evidence and the instructions of the court upon this point, are- eliminated by the verdict of the jury. The jury disregarded the claims of appellees for damages, and found against their contention in that behalf. Hence the errors complained of were harmless, and it is the settled rule of this -court that a -reversal will not be granted for errors /which are not prejudicial to the rights of the complaining party. Harris v. Remmel, 83 Ark. 1; Powell v. Fowler, 85 Ark. 452; Capital Fire Ins. Co. v. Kaufman, 91 Ark. 310; Western Coal & Mining Co. v. Buchanan, 88 Ark. 7; St. Louis, I. M. & S. Ry. C. v. Dysart, 89 Ark. 261. We do, however, agree with the contention of counsel for appellant that the court erred in -giving the jury instruction No. 1 at the request of appellees and over the objection of appellant. In that instruction the court ignored the contention of appellant that the appellees refused to accept the machinery, -and thus absolved the appellant from any further duty to tender or deliver the machinery. The testimony of S'. T. Poe in behalf of appellant on this point has been fully set out in the statement of facts, and, without repeating it here, it is sufficient to say that the language and conduct of Brock, as testified to by Poe, in effect was an absolute refusal to accept the machinery, and appellant was justified in relying upon Brock’s action as equivalent to a waiver of tender. While the testimony of Poe on this point is squarely denied 'by Brock, who says that no offer or tender was made until after the machinery was placed in the hands of the receiver, yet the contention of appellant in that regard should have been submittéd to the jury. No tender is necessary when the contract has been definitely repudiated by the buyer, as by a refusal to aceept delivery if tendered. 35 Cyc. 171 and cases cited in note 43; Kirchman v. Tuffli Brothers Pig Iron & Coke Co., 92 Ark. 111. Counsel for appellant also assigns as error the refusal of the court to give an instruction asked by them on this point. We do not think the court erred in refusing the instruction in the form in which it was asked; for it was open to the objection that it assumed that the appellees had refused to accept the machinery. For the error in giving instruction No. 1 at the request of appellees the judgment is reversed, and the cause remanded for a new trial.