ARK.] NATIONAL CASH REGISTER CO. V. -HOLT. 617 NATIONAL CASH • REGISTER COMPANY V. HOLT.. 4-4519 ; Opinion delivered February 8, 1937: 1. BILLS AND Noi . es—EviDENCE.—In 'an action on a _promissory note given as' part of the purchase' price of a cash register, evidence that the cash register was -to be of the latest model and would. prove satisfactory upon trial after reasonable opportunity for that purpose had been afforded was admissible where its purpose was to show that no contract had been made as , the con7 tingency upon which it should ' become effective never happened. 2. EVIDE NCE. — Wheie, in an action' on a promissork note' given as part of the purchase prke 'of a cash regiater; apPellee testified that he signed the note-in blank with the understanding
618 NATIONAL CASH REGISTER CO. ?). HOLT. [193 that the register should be of the' latest model and that it should prove satisfactory upon trial after reasonable opportunity for that purpose had been afforded and that this would be written therein, which was not done, the testimony did not violate the rule against varying a written instrument by parol testimony. C. & M.'s Dig., § 1234. P. APPEAL AND ERROR.—Where appellant, in an action on a promissory note given as part of the purchase price of a cash register, is not, by the admission of testimony showing that the cash register should be of the latest model and that it should prove satisfactory after reasonable opportunity for trial had been afforded, mislead to his prejudice, and has failed to ask fbr a continuance on the ground of surprise, -he . cannot speculate on the outcome of the trial and then, on appeal, complain of the error. . Appeal from Union Circiiit Court, Second Division; Gus W. Jones,.Judge ; aftirthed. • Warren :c . 6 Warren, for appellant . . . Silas W. Rogers; for .appellee. 'SMITH,. J. . Appellant sued appellee on a note,- the execution of which was admitted. • The note was..given in part payment of a cash register,. upon which . a 'Small doivn payment had been made; Liability on the note was denied, upon the ground that the-execution of the contract of sale, which . was the consideration for the note and which was in writing, had been induced by fraudii-lent representations as to the kind and character of the register. The further defense was interposed that the note and contract were signed upon the condition -that the register' be placed in appellee's store,. where it was to be used, and that the salesman representing appellant agreed that he would keep the note and contract in his possession . until Monday following the 'date of sale and would not then transmit them to appellant, his prin, cipali unless the .register had proved satisfactory. The agent explained, so the answer alleged, that he could not deliver a register unless' and until he hAd a signed order for 'the register, bilt it was agreed that the contract of sale and the note based thereon should not be effective until appellee had the opportunity to inspect and use the. register until the following Monday. Testimony was offered in support of these allegations of the answer to the
ARK.] NATIONAL CASH REGISTER . CO ; V. HOLT; 619 effect that the register was not the latest model, as the agent had represented it would be, but was in fact an.old model,- and was otherwise unsatisfactory. The abstract of the. testimony is not as full as it should be. Indeed,, a motion .to dismis g the appeal for noncompliance with-. rule 9 was made .on that account. But we do gather from the abstract before us that ap-pellee made demand upon the salesman for.the late model register which the .salesman had y epresented was being sold, and that the agent declined to make the exchange, whereupon appellee discarded the register and discontinued its use .and; now holds it . subject to appellanCs order. - :Appellants • objected to thiS testimony, upon the ground that it varied and contradicted the contract of sale. The testimony was not incompetent for that reason. Its purpose wns tee shoW that no contract -had ever been made, as the contingency upon which it should become effective never happened, that is, that the register. should be the latest model and would prove , satisfactory Upon trial after reasonable opportunity for that .purpose had been afforded.. Mansfield Lbr. Co..v, Gravette, 177 Ark. 31, 5 S. W. (2d) 726. Appellee testified that he signed the contract in blank with the understanding that the terms and conditions above-mentioned would be written therein; but this. was not done. That such testirn ony did i not violate the rule againSt varring a written instrument by parol testimony was expressly held in the case of New Home Sewing Machine , CO. v. Westmoreland, 183 Ark. 769, 38 S. W. (2d) 314, and the c .aSés . there cited. The. testimony : was,. objected to upon—the further ground' that the answer did • not set Up this defense, and instructions submitting that issue Were objeCted to for the same yeason. The objection to this testimony and to. the instruction submitting this question • of- fact to the jury is answered by citing § 1234, Crawford & Moses' Digest, which reads as . follows : "No variance between the allegations in a pleading.. and'th , e, .prOof is to be deemed material, unless it has actually . misied the adverse. party to his
620 [193 prejudice in maintaining his action or defense upon the merits. . Whenever • it is alleged that a party has been so misled, that fact must be. shown to the satisfaction of the conrt, and. it must also be- shown in what respect he has been misled; arid thereupon the court may order .the, pleading to be amended upon such termS as may be .justi! . It is insisted that this issue . of fact was within the scope of the answer, filed, but .that in no event was appellant .. misled to its prejudice. First National Bank of Monette v., First National . Bank .of Lepanto, 159 Ark. 517, 252 S: W. 594.• But, however that may be, appellant did not plead surprise, and did not ask a continuance on that account... The trial court might haVe granted a continuance for that reason had the'request been made. Appellant elected to speculate ' upon the outcome of. the trial without making that request. Had it been made, the court might have. permitted the amendment to be made; but Upon such . terms as appeared to be just, as provided by statute. Butler . Connty R. R. Co. v. Exum, 124 Ark: 233, 187 S. W. 329. • ge— error appears; and the judgment must be . af-. firmed. It is so orde • red. •
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.