The testimony on the part of appellant was to the effect that no one of the shipments of bags came up to the specifications of the original contract, and this fact was called to the attention of the salesman of appellee, who in each instance agreed to have the defects remedied. Other orders were placed, and the same defects were found. Finally, after repeated protests against the character of bags which were shipped under the contract and the unperformed promises to comply with the contract, appellant discontinued his orders. A salesman of appellee called to see appellant, and the subject was again discussed, and appellant stated that he did not place the orders as contemplated in the original contract for the reason that the bags shipped did not conform to the contract. Appellant pointed out to the salesman the defects complained of, and the salesman promised that, if orders were renewed, there would be a compliance with the contract in the future. A sample bag, with the printing desired, was furnished the salesman, and it is not questioned that appellant had the right to specify the kind of bags he desired.
This final order was given under the express condition that appellant would no longer waive the right to insist that the bags comply with the specifications and would give no other orders if this final one was not properly filled. This order was placed with the salesman, but the bags shipped pursuant to it were found to be as defective as the former ones had been. Appellant testified that he used the bags because they would have been valueless to any one else on account of the printing on them.
Now, this is not a case of one refusing to accept a shipment of goods which did conform to the contract of *Page 1136 sale because previous shipments which had been accepted did not conform to the contract. In fact, no bags were shipped which appellant refused to accept. The litigation arose over appellant's refusal to place further orders, and the question is whether he should have continued to place orders.
Appellee's manager at New Orleans testified that the bags shipped conformed to the contract. This was denied by appellant. It is true, of course, as was said in the case of Wooten Co. v. Bain Adams, 146 Ark. 462, from which the majority have quoted, that the purchaser cannot accept a delivery of goods, even though they do not conform to the contract, and thereafter refuse, on that account, to accept other deliveries which do conform to the contract. But it was also said in the case quoted from that "on the other hand, the fact that they had accepted a consignment of cotton falling short of the requirements of the contract did not require them to accept other consignments which did not meet the requirements of the contract."
That principle is applicable here. The jury might have found, had the case been submitted to them, that the bags did not conform to the contract, although appellee's insistence was that the bags did conform to the contract. The final shipment was ordered upon condition that the bags would conform to the contract. Appellee insisted that they did, and would, no doubt, have filled future orders in the same manner in which this last and the prior orders had been filled. Appellant was therefore under no duty to continue placing orders unless appellee would conform to the contract by shipping bags of the kind and quality specified in the contract. Appellee insisted that it was doing this, and had done so, and the jury might therefore have found that appellee would continue to ship bags which appellant thought did not conform to the contract.
Appellant did not refuse to receive the delivery of any bags which, according to his interpretation of the contract, conformed thereto. Appellee had not made *Page 1137 any such shipment, according to appellant's contention. Appellee's attitude was that it had shipped bags complying with the contract, which was a question of fact presented by the testimony, and appellee's insistence was that appellant should place other orders, which would, no doubt, have been filled in the same manner as previous orders were filled, at least the jury might have so found.
If appellee had said that it would thereafter ship bags conforming to the contract, although it had not previously done so, appellant could not excuse himself from receiving such bags because prior shipments which he had accepted did not conform to the contract. But appellee made no such concession or promise. The jury was not permitted to decide the issue of fact — whether appellee had shipped bags which conformed to the contract — and so long as appellee insisted, not simply that it would thereafter perform the contract, but that it had previously done so, it would have had no right to demand that appellant continue to place orders, which would be filled as other orders had been, because the prior shipments had not been returned, if, in fact, appellant was right, and appellee was wrong, in the dispute as to whether the bags conformed to the contract.
I think therefore that the jury should have been allowed to decide whether the bags shipped conformed to the contract, and did appellee offer, if orders were placed, to ship bags which would conform to the contract.
I therefore respectfully dissent. *Page 1138