found to be unfit for human consumption and was returned. The damaged portion of the two cars aggregated the price of $2,949.28, according to the invoices, and of this enough was sold to realize the sum of $1,322.52, leaving a balance claimed by way of damages, including interest, commission and handling charges of $1,823.93, the amount sought to be recovered. According to the undisputed evidence appellant made no report to appellee until May 4, 1918, when a statement of the amount of damages was furnished. A trial of the issues before a jury resulted in a verdict in favor of appellee.

Several errors of the court are assigned in giving certain instructions, but as the material facts in the case are undisputed it is unnecessary to discuss the instructions of the court.

There was no express warranty of the quality of the meal sold, but there was an implied warranty that the commodity sold was of the kind and quality specified and was wholesome and reasonably fit for use. Under the terms of the shipment appellant had the opportunity to inspect the meal before he accepted it, and he did in fact inspect it immediately after the payment of the draft, and he then discovered that it was not in accordance with the specifications and was unfit for use.

The law on the subject is that where chattels are purchased under express warranty as to quality, the purchaser may rescind on discovering the inferior quality of the article sold, but is not bound to do so, and, on the contrary, may retain the articles purchased and sue on the warranty or recoup the damages when sued for the price. In case, however, the contract is to deliver goods of a particular description or quality without express warranty, and the purchaser accepts them after inspection and discovery of the inferior quality, or after having had a fair opportunity to make such inspection, he waives the right to claim damages for defects or inferiority of the goods sold.

The case of Dana v. Boyd, 2 J. J. Marsh. (Ky.), 588, one of the early cases on the subject in this country, after stating the rule that a purchaser who receives goods under those circumstances waives the defects, states the following exceptions to that rule: "To this there may be exceptions, as, when the defects are discovered afterward; in which case he must, on the discovery thereof, offer to restore, or where there has been fraud, in concealing or misrepresenting the bad qualities of the articles, or an express warranty. But, where the defects are palpable and are perceived at the time, he must reject the goods and set aside the contract in toto, and go for their full value, and can not be allowed to accept and then bring his action for the bad quality."

The rule announced in that case has been followed by a long line of cases in the Kentucky Court of Appeals. O'Bannon v. Reff, 7 Dana 320; Kerr v. Smith, 5 B. Mon. 533; Jones v. McEwan, 91 Ky. 377, 12 L. R. A. 399; Forsythe v. Russell Co., 148 Ky. 492; Caldwell v. Cunningham, 162 Ky. 275. There are many other authorities sustaining that rule, and the overwhelming weight seems to be in its favor. McCormick Harvesting Machine Co. v. Chesron, 33 Minn. 32; Rosenfield v. Swenson, 45 Minn. 190; McCormick Lumber Co. v. Winans (Wis.), 105 N. W. 945; Hazen v. Wilhelmie (Neb.), 93 N. W. 920; Ackerman v. Santa Rosa-Vallejo Tanning Co., 237 Fed. 369; Northern Supply Co. v. Wangard, 117 Wis. 624.

In the present case the purchaser, before making any use of the commodity purchased, notified the seller of the inferiority of the commodity, which was tantamount to a refusal to accept, and if that position had been maintained throughout the subsequent dealings with regard to the commodity purchased there would not have been any waiver of the right either to rescind the sale or to sue for the damage. Such, however, was not the effect of appellant's conduct in his subsequent dealings. He was instructed by appellee to "unload car, advise ex

tent, nature damage, give plenty of air." This meant that appellant was authorized to unload the car and separate the meal so as to give it plenty of air and then to advise appellee of the extent and nature of the damage. This was the extent of the authority conferred, and appellant had no right to do anything more, and the implication which necessarily arises is that the instructions were to be obeyed within a reasonable time. Instead of obeying those instructions, appellant sold the meal and waited about five weeks before he made any report to appellee as to the extent and nature of the damaged condition of the meal. This can only be construed as a waiver of the right to complain of the inferior condition of the meal. The case of Rosenfield v. Swenson, supra, is directly in point. There was a delay of six weeks before complaint was made of the inferiority of the commodity sold, and the court in disposing of the case announced the applicable rule as follows: "Where goods are sold and delivered upon condition as to kind and quality, it is the duty of the vendee to promptly examine them, and, if the conditions are not complied with, to notify the vendor within a reasonable time of his refusal to accept. If he unreasonably delays such notification, he must be held to have accepted in fact." The court held that the delay of six weeks was unreasonable.

In the case of McCormick Lumber Co. v. Winans, supra, the court held that a delay of eight months was unreasonable.

We are of the opinion that appellant's conduct in proceeding to sell the meal without authority from appellee and his delay in making a report to appellee of the condition in which he found the meal after unloading it constituted a waiver of the defective condition and an acceptance of it in fulfillment of the contract which precluded him from claiming damages.

There is nothing in our own decisions cited by counsel for appellant in conflict with the views here expressed. In fact, those cases are in accord with what we now hold.

Pewett v. Richardson, 79 Ark. 66; Warden v. Middleton, 110 Ark. 215; Thompson v. Crenshaw, 113 Ark. 169.

The judgment is therefore correct from the undisputed facts of the case and should be affirmed. It is so ordered.

1.

2.

SANDLIN V. BAILEY.

Opinion delivered November 8, 1920.

APPEAL AND ERROR-OBJECTION TO AMBIGUOUS INSTRUCTION.-TO an instruction that is ambiguous, and that might have been understood as assuming a certain fact, a general objection is insufficient, as objections to ambiguous instructions must be specific, so as to give the trial court an opportunity to correct the instructions by eliminating the ambiguity.

LANDLORD AND TENANT-WRONGFUL TAKING EVIDENCE. In an action for damages for the wrongful taking and cultivation of land, a finding that the land had been taken and cultivated by defendant by authority, and that he had tendered to plaintiff the proper share of the crop, held sustained by evidence.

Appeal from Yell Circuit Court, Dardanelle District; A. B. Priddy, Judge; affirmed.

R. F. Sandlin, for appellant.

The maxim, "As one binds himself so shall he be bound," should be upheld in this case. Appellee read the contract, and he is bound by it-hardship or inconvenience does not excuse performance of a contract. 61 Ark. 315; 93 Id. 452; 9 Cyc. 627; 162 S. W. 946; Cent. Dict. "Contract," 152. The court erred in instruction No. 4. It is in conflict with No. 2. Appellee says he could have performed the contract, and the facts are not disputed; the court should have directed a verdict. 104 Ark. 267. It is error to instruct a jury on an issue where there is no evidence to support it. 86 Ark. 127; 79 Id. 109; 153 S. W. 928; Cent. Dig., "Trial," §§ 505, 596, 612; Dec. Dig., 352. Our first instruction was correct, and was § tantamount to a specific objection. 118 Ark. 262. The verdict is contrary to the law and the evidence. The

case is fully developed, and this court should direct judgment for appellant for $162.

MCCULLOCH, C. J. Appellant, Mrs. Ella Sandlin, owns a farm in Yell County, and entered into a written contract with appellee whereby the latter agreed to clear up ten acres of the land ready for the plow for the sum and price of $55 to be paid by appellant and to cultivate the same in corn and to deliver appellant one-third of the crop for the use of the premises. The contract also specified that appellee should have the use of the house on an adjoining tract owned by appellant in another section.

This is an action instituted by appellant against appellee to recover damages for breach of said contract, it being alleged that appellee failed to clear up the land in accordance with the terms of the contract or to cultivate it as agreed upon. It is also alleged that appellant, without authority, cultivated one and one-half acres of land near the house in another section, not covered by the contract, and this action is to recover the rental value of the land so taken and cultivated. The case was tried before a jury, and the verdict was in favor of appellee.

Appellee introduced proof tending to show that he was prevented, on account of high water, from clearing the land according to the contract, and that the high water prevented the cultivation of the crop on the land. The court submitted the issues to the jury on instructions which told the jury, in substance, that if appellee failed to clear the land in accordance with the terms of the contract he would be liable to appellant for the difference between the price agreed upon for doing the work and what it would cost appellant to have it done by some one else; and that appellant would be also entitled as damages for a reasonable rental value of the land for that year as if it had been cleared and put in cultivation in accordance with the terms of the contract.