Main v. Jarrett

93 S.W. 750, 78 Ark. 137, 1906 Ark. LEXIS 222

Opinion

Battle, J.

The trial court erred in instructing the jury. The instructions made the right of plaintiffs to recover to depend upon the delivery by them to the defendants of a bill of lading, when the non-delivery of a bill of lading was not pleaded as a defense. No such issue was joined. The undisputed evidence shows that a bill of lading was sent by mail to the defendants. But they say they never received it,.and that they did not inform plaintiffs that they had not received it and made no request for a duplicate. They received all the goods purchased, except a show case, and for that reason refused to pay for the goods. The instructions were, therefore, erroneous.

Reversed and remand for a new trial.