O'Leary v. Keith

WOOD, J., (after stating the facts). There was a sharp conflict in the evidence as to whether the apples delivered by the appellee to the appellant, under the contract of purchase, were of such quality and grade, and whether they were packed in such manner, as to comply with the contract. The issue, therefore, as to whether the appellee had broken his contract in these respects was one of fact for the jury and was submitted under correct instructions. The verdict against the appellant is, therefore, conclusive here. Moore v. Thomas, 132 Ark. 97. The testimony of appellee to the effect that he had instructed his packers to do an extra good job, because the purchaser was not there to look after it himself and that they promised to do it, was not prejudicial to the appellant. This testimony only tends to prove that the packers had been directed to do their work properly. One of the packers testified, without objection from appellant, that he had been thus instructed by Earl Keith and Russell Keith and that he always did that. It does not occur to us that the above testimony tended to add any additional weight or force to the testimony already adduced without objection. The jury would not likely have given any additional weight to the testimony tending to show that the apples had been properly packed. Appellant’s prayer for instruction No. 2 was fully covered by the court’s instructions 4 and 5. Appellant contends that the undisputed evidence shows that there was an accord and satisfaction and that the court should have so instructed the jury. To sustain his contention he cites the following cases: Wilkes v. Slaughter, 49 Ark. 235; Barham v. Bank of Delight, 94 Ark. 158; Cunningham Com. Co. v. Rauch-Darragh Grain Co., 98 Ark. 269; Barham v. Kizzia, 100 Ark. 251; Longstreth v. Halter, 122 Ark. 212. These cases hold in effect that, “When a claim is in dispute and a debtor sends to his creditor a check or other remittance which he clearly states is a full payment of the claim and the creditor accepts the remittance or collects the amount of the cheek without objection, this constitutes a good accord and satisfaction.” Syllabus Longstreth v. Halter, supra. But the court was not warranted in instructing the jury as a matter of law that the undisputed evidence, in the instant case, constituted a complete accord and satisfaction. It was an issue for the jury under the evidence as to whether the payment made by the appellant and accepted by the appellee constituted an accord and satisfaction. The issue was submitted under instructions which declared the law applicable to the facts and which were in conformity with the law as announced in the above cases, upon which the appellant relies. There is no reversible error and the judgment must be affirmed.