Stainback v. Henderson

95 S.W. 786, 79 Ark. 176, 1906 Ark. LEXIS 353

• Court: Supreme Court of Arkansas
• Decided: May 28, 1906
• Status: Published

Opinion

Wood, J.,

(after stating the facts.) 1. There was no error in permitting the amended answer. Under section 6098, Kirby’s Digest, a defendant “may set forth in his answer as many grounds of defense * * :|! as he shall have.” But the motion for new trial does not set out the ruling of the court in permitting the amended answer as one of the grounds for new trial. Therefore, even if the court erred in permitting it, appellants must be held to have abandoned their exceptions to the court’s ruling in this particular. Blunt v. Williams, 27 Ark. 374; Knox v. Hellums, 38 Ark. 413; Ferguson v. Ehrenberg, 39 Ark. 420. 2. Appellants contend that the court erred in refusing instructions numbered seven, eight and nine asked by them. But these instructions are not set forth in the abstract, and we must assume that the court ruled correctly in refusing them. St. Louis, I. M. & S. Ry. Co. v. Boyles, 78 Ark. 274; Shorter University v. Franklin, 75 Ark. 571; Koch v. Kimberling, 55 Ark. 547.

Appellant further contends that the court erred in giving instructions numbered one to four on behalf of appellees. These instructions are not set forth in appellant’s abstract. Appellees, however, have supplied the omission by setting them out in their brief. We find no error in the giving of these instructions. They present the law applicable to the facts on the theory that Graves had the right to countermand the order for the glass, and that there was to be no shipment until Graves notified appellants to ship same. In other words, they present the law based on the contention -that the alleged contract evidenced in part by the order was conditional, and never became a completed contract. There was evidence, which went to the jury without objection, upon which to ground this contention, and to support the verdict.

The judgment is affirmed.