Cocke v. Cross

• Decision Date: 17 December 1892
• Citation: 20 S.W. 913,57 Ark. 87
• Parties: COCKE v. CROSS
• Court: Arkansas Supreme Court

20 S.W. 913

57 Ark. 87

COCKE v. CROSS

Supreme Court of Arkansas

December 17, 1892

Appeal from Phillips Circuit Court, GRANT GREEN, JR., Judge.

Cross the appellee, brought an action of replevin against Cocke & Co., the appellants, to recover the value of two mules alleged to have been taken from him and converted by the appellants. They answered that the mules were conveyed by Cross to one Nelson in trust to secure a note made by Cross for $ 570, payable to Woodyard & Co., with power in the trustee to sell the mules on default of payment; that Woodyard & Co. had assigned and delivered the note to the appellants; that, default having been made in the payment of the note, Nelson sued for and recovered possession of the mules; that he then disposed of them for the purposes of the trust, and that the appellants became the purchasers and credited the note by the price at which the purchase was effected. The cause was submitted for trial to the court sitting as a jury, and the following agreed statement of facts was read in evidence:

It was agreed by the parties to this suit for the purposes of this trial, as follows:

1. That M. B. Woodyard & Co. gave to defendants three promissory notes, one of which was paid, and the other two were renewed that subsequently M. B. Woodyard & Co., to secure said notes transferred to defendants, as collateral, sundry notes taken from their customers, among which was one note given to said Woodyard & Co. by said plaintiff for supplies furnished payment of which was secured by deed of trust on the mules in controversy.

2. That defendants brought suit in this court against M. B. Woodyard & Co. to recover a judgment upon said two notes, which was the only indebtedness claimed to be owing from said Woodyard & Co. to said defendants, either at the time of transfer of said collateral notes, or at the date of the bringing of their said suit. Woodyard & Co. filed their bill to cancel said notes as usurious, and, upon the hearing, the court decreed in accordance with the prayer of the bill.

3. That the value of the said mules at the time they were taken from possession of said plaintiff was two hundred dollars, and they were taken by the trustee under proceedings in the common pleas court of this county and delivered to said defendants without a sale, under the provisions of said deed of trust, and without consent of this plaintiff; that at that date plaintiff was indebted to Woodyard & Co. in the sum of one hundred and thirty-five dollars for supplies so furnished under said deed of trust.

4. That said original notes so made to J. L. Cocke & Co. were payable at the office of said J. L. Cocke & Co., Memphis, Tenn., and the notes given in renewal of the two notes not paid were payable at the office of John S. Hornor & Son, in Helena Ark.; that said original notes were at the hearing produced to the court by the attorneys for Woodyard & Co., and, upon the objection of the attorney of J. L. Cocke & Co. to their introduction at that time, they were withdrawn. That the plaintiff does not, by anything in this agreement, admit that it is competent for the defendants to impeach or modify the decree rendered in said cause of Woodyard & Co. v. Cocke & Co., or that any testimony is admissible for that purpose.

Thereupon the defendants offered to introduce James C. Tappan as a witness, who would have testified as follows:

"I was the attorney for Nelson, trustee, against Moses Cross, in the Phillips county court of common pleas; the two mules taken in that suit are the same two mules sued for here; they were taken in that suit and turned over to J. L. Cocke & Co. who were the owners of Cross' note, which had been assigned to them by M. B. Woodyard, on May 4, 1887, the same being for five hundred and seventy dollars, and was secured by deed of trust executed by Moses Cross, the plaintiff, on said two mules. They were turned over by trustee in said suit to J. L. Cocke & Co. on January 28, 1888, who credited Cross' note with one hundred and twenty-five dollars, the appraised value of said mules as of that date. Said suit progressed to judgment against said Cross, with the consent and approbation of Woodyard's attorney. Afterward Cross appeared in the court of common pleas and moved to set aside said judgment, which the court refused to do. When the decree was obtained in the suit of M. B. Woodyard & Co. against J. L. Cocke & Co. in this court, I was attorney for defendants, and, not being satisfied with the decree, I then intended to take an appeal to the Supreme Court. There were some two or three hundred dollars tied up in court in said suit, and I, as attorney for defendants, held several claims which had been transferred to J. L. Cocke & Co. by Woodyard. Mr. J. P. Clarke, attorney for M. B. Woodyard, agreed if J. L. Cocke & Co. would not take an appeal from said decree, and turn over said claims on which suit had not been brought, that he would pay me one hundred dollars of the money in court...