(after stating the facts.) Counsel for appellant insist that the court erred in refusing to give the following instruction: “The contract between plaintiffs and defendant, containing, among other things, a clause providing for the payment by the plaintiffs to the defendant of a twenty per cent, penalty as liquidated damages in case of the refusal or failure of plaintiffs to carry out said contract, and said contract being in writing, in order for plaintiffs to avail themselves of any release from the provisions' of said twenty per cent, penalty clause, they must show -either that J. D. Burris, the -agent of the defendant, had written authority from the defendant -to make such- release, or that such release, so claimed to have been made by the said J. D. Burris, was afterward ratified in writing by the defendant.”
The alleged error, they say, consists in the action of the court in permitting appellees to introduce oral testimony of a waiver by appellant of the twenty per cent, clause of the contract; that, the contract being in writing, the waiver or release must be evidenced by an instrument in writing. No objection to the introduction of the parol testimony to- establish the waiver was made at the trial of the case in the court below. Besides, the testimony was competent.
A waiver of a warranty in a policy of insurance may be proved by parol evidence. Sprott v. N. O. Ins. Ass’n, 53 Ark. 215; Ins. Co. v. Brodie, 52 Ark. 11. The reason for the rule is that the forfeiture clause is for the benefit'of the insurance company, and the waiver is not repugnant to the written agreement, because it is only the exercise of an option which the agreement left in it. So in the present case the penalty clause was for the benefit of appellant, and was enforcible at irs option, and the facts in regard to its waiver thereof were provable by parol as well as by written evidence.
Counsel for appellant also predicates error in the action of the court in giving instructions numbers one and two to the jury. No exceptions were saved to the giving of these instructions, and under the rules of the court they can not now be considered.
Counsel for appellants also complain of the action of the court in giving instruction number three as follows: “You are instructed that, upon the item of claim made by defendant for freight paid on goods bought of plaintiffs, there is no proof to sustain the same, and in making up your verdict you will not take this item into consideration.” J. A. Clifton testified that after the fire appellees and J. D. Burris came to him and sold to him the car of implements which Rankin Bros. & Winn, appellees, had bought. That he paid the price they were to pay and all freight, and that the company lost nothing on the car. His testimony was uncontradicted, and was all the testimony on that phase of the case. Hence there was no error in giving the instruction.
The record shows that the case was submitted to the jury under proper instructions of the court, and their finding upon the disputed questions of fact is binding upon us.
Finding no prejudicial error in the record, the judgment is affirmed.