Opinion
PER CURIAM.
In his motion for rehearing, the appellant has correctly pointed out that Rule 9 does not require an appellant to abstract all the instructions given by the court as a predicate to objection on appeal to failure by the trial court to give an instruction proffered by the appellant. Guarantee Trust Life Insurance Company of Chicago, Illinois v. Koenig, 240 Ark. 650, 401 S.W.2d 216 (1966); Forest Park Canning Company v. Coler, 226 Ark. 64, 287 S.W.2d 899 (1956).
We cited Ellis v. State, 267 Ark. 690, 590 S.W.2d 309 (Ct.App.1979), as a case in which the majority opinion explained the history of the abstracting requirement, not as a precedent binding on the parties in this case. Our historical discussion in Ellis was incomplete, however, as it left out the Guaranty Trust and Forest Park cases cited above.
We will not, however, depart from a requirement that an appellant abstract at least the instruction proffered where the basis of appeal is failure of the trial court to have given it. We regard that requirement as fairly set out in Rule 9 (d). The rationale for the rule and the requirement as we apply it here will be found in Bank of Ozark v. Issacs, et al., 263 Ark. 113, 563 S.W.2d 707 (1978).
Nor will we consider the failure to abstract cured by mention of the omitted matter in the brief of the appellee where no supplemental abstract is filed. Rule 9 (e); Smith, Abstracting the Record, 31 Ark.L.Rev. 359, 368 (1977). Here neither party abstracted any instruction given or proffered. The appellant did set out the proffered instruction in the argument portion of his brief, and the appellee set out in the argument portion of his brief the comparable instruction that was given by the court. As stated, that does not comply with the abstracting requirement.
In view of this failure, we persist in our refusal to give formal and full consideration to the appellant's point. However, we can assure the appellant that even in our original consideration of the case, 267 Ark. 961, 593 S.W.2d 48 we did not completely ignore the point although we decided to base our decision on the abstracting lapse. To the extent we were able to consider the point, it was apparent to us the court correctly instructed the jury it was the appellee's burden to prove the terms of the contract and it was not necessary for the court to have used the word "price" or to have specifically instructed the jury in the manner the appellant's argument suggests was requested at the trial.
Rehearing denied.