Ames Iron Works v. Rea

• Decision Date: 01 July 1892
• Citation: 19 S.W. 1063,56 Ark. 450
• Parties: AMES IRON WORKS v. REA
• Court: Arkansas Supreme Court

19 S.W. 1063

56 Ark. 450

AMES IRON WORKS v. REA

Supreme Court of Arkansas

July 1, 1892

APPEAL from Marion Circuit Court, DEROOS BAILEY, Special judge.

Judgment affirmed, reversed and cause remanded.

J. M Rose for appellant.

This was a conditional sale of property, and the proper remedy was replevin. 49 Ark. 63; 47 Ark. 363. The answer set up no equitable defense whatever, and the cause was improperly transferred to equity. A counter-claim for damages is not a defense to an action of replevin. Accounts cannot be adjusted or settled in an action of replevin. Cobbey on Replevin, sec 791. Set-off is not a good defense to an action of replevin. 40 Ark. 75; 5 Watts, 516; 23 Ga. 43; 22 Mich. 419; Waterman on Set-off, sec. 144.

W. S McCain for appellee.

1. The legal, as distinguished from the equitable, rights of the parties to conditional sales are well settled. 54 Ark. 476; 52 Ark. 207; 42 id. 100; 54 id. 30; 85 Mich. 185; 7 So. 187; 9 So. 280; 4 S.E. 152; 9 So. 350; Newmark on Sales, 306; Jones on Chat. Mort. secs. 681-698. These cases show the right to relieve after forfeiture.

2. Any claim growing out of the "contract" or "transaction" is a proper defense and counter-claim under our statute. Mansf. Dig. sec. 5034.

3. No question is made as to the quantum of damages. As to the liability, see Benjamin on Sales, 1307-1337.

OPINION

BATTLE, J.

The Ames Iron Works instituted an action of replevin against J. C. Rea to recover possession of an engine, boiler, pump, pulleys, shafting, one fifty saw gin, feeder and condenser, and one set of Southern Standard Press Irons, of the aggregate value of $ 800, claiming that it was entitled to the immediate possession of the same by virtue of the terms of a conditional sale thereof to the defendant.

The part of the defendant's answer to the plaintiff's complaint which it is necessary to state in order to present the question decided by us is, substantially, as follows: On or about the 22nd day of May, 1887, the defendant agreed to purchase of the plaintiff the engine, boiler, pump, pulleys, and shafting sued for, and other things necessary to connect and run machinery with said engine and boiler, on condition that they should remain the property of the plaintiff until the purchase money was fully paid; and plaintiff agreed to ship the same to him at Batesville, in this State, on or before the first of June, 1887, and he agreed to pay therefor $ 110 cash, and various other sums at stated times, amounting to the sum of $ 652, and to pay $ 50 freight thereon. Machinery was delivered to him at Batesville on or about the 18th of July, 1887, upon his paying the $ 50 for freight, the $ 110 cash, and executing notes to the plaintiffs for the deferred payments, according to his agreement; and he hauled it a distance of one hundred miles to his home at Oakland, in Marion county, in this State, as he received it, a part thereof being in boxes. When he arrived at home and opened the boxes he found that an inspirator and other parts of the machinery which he had purchased had not been delivered to him. He was not able to operate the machinery on account of this failure to deliver. He at once notified plaintiff of the failure and used reasonable diligence to get the missing parts and was unable to procure them until it was too late to make the machinery answer the purpose for which he had purchased it, which was to gin cotton produced in 1887. It was late in the fall when he was prepared to gin and the best part of the ginning season had passed. While he was attempting to supply the missing parts, seed cotton was offered to him which he did not take and other cotton would have been received by him had he been prepared to gin, which he did not get, because his machinery was incomplete. The result was, he was damaged, by plaintiff's failure to perform its contract, in the sum of $ 600.

He insisted that plaintiff should be held responsible to him for his damages, because it had notice of the object of his purchase when it was made; and also insisted that the amount thereof should be deducted from the amount due on his notes, and that he should only be required to pay the balance due after such deduction. He alleged that he had tendered to the plaintiff such balance and still tenders it.

He asked that the action be transferred to the equity docket; that his damages be assessed and considered a payment on his notes, and that if the damages were not sufficient to satisfy the notes, judgment be rendered against him for the balance still remaining due, and for other relief.

Plaintiff replied to the answer, denying that the defendant had been damaged, or, if he was, that it was caused by its negligence in the performance of its contract; and at the same time demurred to the answer because the facts stated therein were not sufficient to constitute a defense, a counter-claim or set-off.

The action was transferred to the equity docket; and the demurrer to the answer was overruled. The action was heard upon the pleadings and exhibits thereto and the depositions of witnesses on file. The court found that the plaintiff had failed to perform its part of the contract of sale, and that defendant was damaged thereby in the sum of $ 350, and that he was indebted to plaintiff, on account of the purchase money for all the property sued for and interest thereon, in the sum of $ 891.21; that the damages should be credited to the defendant on his indebtedness; which being done, there was still remaining due to the plaintiff the sum of $ 541.21; and adjudged and decreed that plaintiff recover of and from the defendant the $ 541.21, and that the same be a lien on the property in controversy, and that it be sold to pay the same, and that the notes executed by the defendant be delivered up and canceled; and plaintiff appealed.

Was the counter-claim of defendant properly pleaded in this action? The right to the possession of property sued for is essential to a recovery in actions of replevin. Any state of facts which will show the existence or non-existence of such a right is, as a rule, pleadable in such actions. Thus, in an action of replevin by a mortgagee against the mortgagor to recover the possession of goods mortgaged to him, the mortgagor can successfully defend the action by showing that the debt,...