The only questions presented for our consideration are:
First. Whether or not there was a breach of contract by appellants ?
This question was properly submitted to the jury, and, while the evidence tending to show a breach is not very satisfactory to us, we are of the opinion that there was legally sufficient evidence to sustain the verdict.
Second. Appellants contend that, if there was a breach of contract 'by the appellants, such breach was waived by appellee. And on this theory of the case they presented prayer for instruction number 2, and urge that, the refusal of the court to give it was error for which the judgment should be reversed.
The court did not err in refusing this prayer for instruction. Under the pleadings and proof there was no question of a waiver of a breach of the contract, by appellee in the case. The only issue presented was whether or not there had been a breach of the contract. No objection is made here to the charge of the court as given. But if the question of waiver was an issue in the case, still the prayer asked was erroneous under the proof, because, if there was a breach of contract by appellants in refusing to receive the potatoes from appellee, then the fact that appellee after such breach continued to deliver, and appellants to receive, potatoes until appellee refused further to deliver was not a waiver. It was the duty of appellee, if there was a breach of the contract by appellants, to dispose of the potatoes he had on hand after and by reason of such breach for the best price obtainable and in the most ¡expeditious. manner possible in the exercise of reasonable care, and it was no waiver because, in the disposition of the potatoes he had on hand, he continued to let appellants have potatoes without objecting to the size of the amount that appellants' were receiving.
If appellants had breached the contract, they had no right to suppose that appellee, by thereafter delivering them potatoes, was waiving any of his rights under the contract. Such conduct would, rather than otherwise, tend to show an ¡intention on the part of the appellee to insist on his rights under the contract.
If the question of waiver were applicable, the doctrine of this court in Arkansas & Texas Grain Co. v. Young & Fresch Grain Co., 79 Ark. 603, would show the unsoundness of the rejected prayer.
Judgment affirmed.