Fairbanks, Morse & Co. v. Parker
| Decision Date | 06 February 1925 |
| Docket Number | 173 |
| Citation | 269 S.W. 42,167 Ark. 654 |
| Parties | FAIRBANKS, MORSE & COMPANY v. PARKER |
| Court | Arkansas Supreme Court |
Appeal from Independence Circuit Court; Dene H. Coleman, Judge reversed.
STATEMENT OF FACTS.
Appellant brought this suit against appellees to recover a certain 10-horse-power type "Y" gasoline engine, one 15-horse-power type "Y" gasoline engine with standard equipment, and one 25-horse-power type "Y" gasoline engine with equipment.
The basis of the appellant's suit was that it had sold these engines and retained the title in them until the purchase price was paid, and that the vendee had failed to pay the purchase price.
Appellees pleaded the statute of limitations of three years, and the court found that issue in their favor. Therefore judgment was rendered in favor of appellees, and, to reverse that judgment, this appeal has been prosecuted.
On the 21st day of October, 1916, appellant, which is a manufacturing corporation doing business in the city of St Louis, Missouri, by a written contract sold to the J. C Shepherd Mining Company, an Arkansas corporation, and to J C. Shepherd, a 10-horse-power engine, and the engine was delivered to it at Cedar Creek, Arkansas. On the 21st day of June, 1918, appellant sold to J. C. Shepherd a 15-horse-power gasoline engine and a 25-horse-power gasoline engine. These were to be shipped to J. C. Shepherd at Cushman, Arkansas. There was a written contract in each case, and appellant expressly reserved title to the property until it was paid for.
The contract of October 21, 1916, provided that the purchase price of $ 3,300 was to be paid partly in cash and partly on a credit. The deferred payments were $ 1,320 due on March 1 1917, and $ 1,320 on June 1, 1917, after shipment. Notes were given for these amounts, and a renewal note was accepted some time in the month of June or July, 1918, for the balance due. The principal and interest of these renewal notes at the date of the trial on October 23, 1923, was $ 463.40. Under the contract of June 21, 1918, for the 15-horse-power and the 25-horse-power engines, certain payments and credits were made, leaving a balance due, principal and interest, of $ 1,201.97 at the date of the trial.
The purchaser under the original contract of the conditional sale sold the engines in question to his co-appellees, and they were finally located by the plaintiff in the possession of appellee, Parker, near Batesville, Independence County, Arkansas. As soon as the whereabouts of Mr. Parker was obtained, a written demand was made on him, on August 13, 1921, for the return of the engines, or the payment of the balance of the purchase price. A long correspondence ensued between the parties as to their respective rights in the premises, and appellees finally failed, or refused, to return the engines or pay the balance of the purchase price of them. Thereupon, on March 7, 1923, appellant instituted this suit in the circuit court against appellees to recover possession of said engines. The defendant, Parker, showed that he had been in the possession of the engines, as purchaser of them from the original vendee, for more than three years before this suit was brought, and that he had claimed them as his own during all that time.
Under this state of facts the circuit court declared the law to be that appellant was barred of recovery by the statute of limitations.
Judgment reversed, and cause remanded.
Jones, Hocker, Sullivan & Angert, Vincent L. Boisaubin and Ernest Neill, for appellant.
The statute of limitations in replevin suits is a bar to recovery only after three years after the cause of action accrues. Where the possession is rightful, demand and refusal are necessary to convert the original rightful possession into a wrongful detention or taking, and the action does not accrue nor the statute begin to run under such circumstances until demand and refusal. 34 Cyc. pp. 1404, 1405, 1423; Wells on Replivin (2nd ed.) § 798; 8 Ark. 109; 46 Ark. 489; 22 Ark. 467; 44 Ark. 29; 96 A. (N. J.) 481; 115 P. 930, 19 Idaho 790; 107 P. 458; 92 A. 6; 141 P. 933; 85 A. 511; 94 A. 30; 176 N.W. 786, 13 Am. L. R. 439. Conditional sales contracts are good, and the title remains in the vendor until paid for, and a purchaser from the vendee acquires no title, although he buys in good faith for a valuable consideration. Replevin will lie for possession in case of nonpayment, and the burden is on defendant to show payment of purchase price. 68 Ark. 230; 107 Ark. 337; 149 Ark. 369; 57 Ark. 270. While the conditional vendee had such an interest in the property, subject to the reservation of title, as that he could sell it, the purchaser could only acquire the right to become the absolute owner by a compliance with the contract, i. e. upon payment of the purchase price. 5 R. C. L. 402; 52 Ark. 164; 149 Ark. 369; 55 Ark. 642; 40 L. R. A. (N. S.) 873, note.
Samuel M. Casey, for appellee.
The statute of limitations in replevin is three years and begins at the date of the defendant's possession of the property and not at the time of plaintiff's demand for it. 44 Ark. 29; 92 Ark. 618. The statute applies in cases of conditional sales. Parker v. Rolfe, ante p. 245, citing 49 Ark. 63.
OPINIONHART, J., (after stating the facts).
We think the decision of the circuit court was wrong. There is no showing in the record that appellees claimed the property adversely to the rights of appellant, or that the latter waived his right to retake the property, under his contract, for failure to pay the purchase money. The contract in each case was in writing, and in express terms stated that the title to the property should remain in the seller until it was paid for. The fact that the original purchaser sold the engines...
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