Missouri Pacific Railway Co. v. Yarnell

46 S.W. 943, 65 Ark. 320, 1898 Ark. LEXIS 96

Opinions

Hughes, J.,

(after stating the facts.) As the appellant did not deny the genuineness of the contract sued upon under oath before the trial .began, he could not upon the trial object to the introduction in evidence of the copy. The proof showed that the original was in the possession of the appellant; and he should have made his objection that only a copy, and not the original, was exhibited with the complaint before the trial. By his failure to do so, he waived' his objection, and should not have been allowed to take an unlooked-for and unfair advantage of the appellee by having it excluded upon the trial, and thus leave appellee with no opportunity to lay the proper foundation to introduce secondary evidence. The statute provides that “when a writing purporting to have been executed by one of the parties is referred to in and filed with a pleading, it may be read as genuine against such party, unless he denies its genuineness by affidavit, before the trial is begun.” Sand. & H. Dig., § 2929.

The court erred in modifying the third instruction as asked by the appellant, and giving it as modified, over the objection of appellant. The obligations of the contract were mutual, and, if the appellee failed to comply with it, he could not hold the appellant to a compliance. This is too plain to require argument or authorities. The failure of one party to a contract to comply with its terms releases the other party from compliance with it.

For the error in modifying this instruction, and giving it as modified, the judgment is reversed, and the cause is remanded for a new trial.