Compagionette v. McArmick

• Decision Date: 14 June 1909
• Citation: 120 S.W. 400
• Parties: COMPAGIONETTE v. McARMICK et al.
• Court: Arkansas Supreme Court

120 S.W. 400

COMPAGIONETTE v. McARMICK et al.

Supreme Court of Arkansas.

June 14, 1909.

Appeal from Clay Chancery Court; Edward D. Robertson, Chancellor.

Action by J. W. McArmick and another against Joe Compagionette. From the decree, defendant appeals. Affirmed.

Taylor & Brown and G. B. Oliver, for appellant. John N. Moore, for appellees.

FRAUENTHAL, J.

On December 3, 1906, the plaintiffs, J. W. McArmick and C. E. McArmick, instituted this suit against the defendant, Joe Compagionette, in the chancery court of Clay county, and in their complaint they alleged: That on the 22d day of September, 1906, the defendant sold to the plaintiff J. W. McArmick two mules at a public sale for $249.50, and also some harness for $2.50, and that the plaintiffs executed their joint note therefor, which had not then matured. That at the time of the sale the mules were infected with the disease known as "glanders," and that the defendant knew that the mules were so afflicted, and with the intent to defraud defendant caused the mules to be sold at the public sale at which the plaintiff bought. That the defendant was insolvent, and was preparing to sell the notes. They asked that the defendant be enjoined from disposing of the notes, and finally from collecting same. With the complaint the plaintiffs tendered the price of the harness. The defendant filed an answer to the complaint, in which he denied that the mules were afflicted with the glanders, and denied that he knew that the mules were so diseased, and denied any intention to defraud in making said sale. The plaintiff J. W. McArmick died during the pendency of the suit, and as to him the cause was revived in the name of his administrator. Upon the trial of the cause the chancellor found "that the sale of said mules was void as to plaintiffs by reason of fraud practiced in the sale," and decreed that the price of the harness tendered by the plaintiffs be paid to the defendant, and that the defendant be perpetually enjoined from disposing of and collecting said note. It is urged by the defendant that the evidence is not sufficient to sustain the chancellor in his finding of facts. We do not think it necessary to set out in any detail the testimony establishing the issues of this cause. We have carefully examined the same, and from this it appears that at the time of the sale one of the mules had what was then said to be the distemper. Immediately after the sale the plaintiff began doctoring the mule, and this mule died about November 20th following the sale; and the other mule died about December 1st following that date. Witnesses testified as to the various symptoms which these mules exhibited which indicated that they had the glanders. An experienced veterinary surgeon engaged in the government service as veterinary inspector for the bureau of animal industry testified that from the symptoms described the mules undoubtedly had the glanders at the time of the sale, and died from that disease; so that we think that the testimony amply sustains the finding of the chancellor that these mules were infected with glanders at the time of the sale. The more difficult question to determine is whether the defendant knew this. It would serve no useful purpose to here set out the various circumstances adduced in evidence by which it is attempted to prove that the defendant knew that the mules were so afflicted. The chancellor by the decree made a finding to this effect. Upon an examination of the testimony, we cannot say the...