1072 ' HAYES GRAIN & COiVI; CO. v: FEDERAL GRAIN Co. [169 HANES GRAIN & COMMISSION COMPANY V. VEDERAL GRAIN COMPANY. t ! ` .; Ot;inithi delivered December 7, 1925. CONTRApT—fERFORMANCEPINALITY OF INSPECTIONWhere parties : to a contract of sale agreed that inspection of a grain inspector itans4 City should 'be final in case of dispiO, his ingpéCticin was .final, in the iibence of fraud or gross itake and 'the fact • • that S ieveral • inspections by competent inspectors elsewhere differed from that of the , inspector named did not tend to,show 1?aci faith on the latter's part. • Appeal from PUlaski Circuit Court, Second Division; Richard' M. Mann, Judge ; affirmed. : • ' Price Shofner, for' appellant: • ' Gray, Burrow & McDomell, for appellee.' • t HUMPHREYS, J. This is, the -second appeal this case.. Since the pleadings and' evidence reflected by this record-are identical with the pleadings' and evidence reflected by the record on the first appeal, reference is made
ARK.] HAYES GRAIN & COM. CO. V. FEDERAL GRAIN CO. 1073 to' the .case :of Federal Grain Company v. Hayes Grain cg COmMission Co.; , 161 Ark. 51,.for a 'statement herein. By reference to that case it Will be seen that the judgment Was' reversed and the 'cause remanded for a new trial bedausethe trial court erroneously inStrueted the jury td the effect that the inspection of the grain 'inspector at Kansids City that PartieS had agreed should , be final in' case of a dispute arising betwen thein Might be' dis:' regarded • if the inspection was the result of gross mistake. The Supreme Court announced the true rule to be that such an inspection could not be disregarded unless it could be shown that it was either the result of actual fraud or such gross mistake as necessarily implied bad faith or a failure to exercise an honest judgment upon the part of the inspector. In 'remanding the case for a new trial the court specifically refrained from passing upon the legal sufficiency of the evidence :to support the verdict in favor Of the appellant herein. Upon the, retrial , of the case appellant herein' requested an instruction embodying ihe rule annminced hy the Court appli-; cable in such cases, which the court refused to give because of an insufficiency of proof to meet the requirements, of the Tule, but instead peremptorily instructed a verdict in"favor of appellee herein. , A judgment *as rendered in accordance with the instincted ; verdict, from which an appeal has been ,duly proseeuted to this , court. - The Only question presented_by the appeal is whether, or not there is any substantial testimony in the record tending to show that' the reSult : of the insPection in Kansas City Was reached through the fraud of the inspector or through such a gross . mistake on his part as would necessarily impiy.thad faith or a failure to exercise an honest jUdgL ment. The record fails to disclose. any, evidence at ,all tending 'to show that the Kansas City inspector was gUilty of actual frUud in making the _inspection: The only fact in the record from which apPellant contends that fraud inay be inferred is thelact that several inspections made in Little Rock by competent inspectors showed
that the oat's *ere grade No. 4; . insteadof grade No..3; as shown , by , the Kansas City inspeCtion: - We do.not think this was such a gross mistake that it tended to show bad faith on the part of ,the Kansas City inspector.,v, Since: there is-a totatfailure of- evidence tending to shqw.fraud, or such a.gross mistake .in grading the oats that ,fraucL might reasonaNy be inferred,-thei judgment must be af7. firmed. , It is so ordered.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.