H. V. Beasley Music Company v. Cash

• Decision Date: 09 June 1924
• Docket Number: 31
• Citation: 262 S.W. 656,164 Ark. 572
• Parties: H. V. BEASLEY MUSIC COMPANY v. CASH
• Court: Arkansas Supreme Court

262 S.W. 656

164 Ark. 572

H. V. BEASLEY MUSIC COMPANY v. CASH

No. 31

Supreme Court of Arkansas

June 9, 1924

Appeal from Pike Chancery Court; J. C. Pinnix, special chancellor reversed.

Decree reversed and cause remanded.

McMillan & McMillan, for appellant.

Appellee withdrew his motion to transfer, and the case, by agreement was submitted to the chancery court. The case is therefore not ruled by Olson v. Moody, 156 Ark. 319. Appellant had the right of election to affirm the sale and sue to recover the debt, and that right, by this action, the appellant exercised. 78 Ark. 569; 117 Ark. 469. Its choice to pursue this course is not inconsistent with the rights given it as a vendor under C. & M. Digest, chap. 156, §§ 8729-30.

Featherston & Featherston, for appellee.

The statement in appellant's complaint, viz: "plaintiff has and claims a vendor's lien on said piano," is inconsistent with its assertion of title in its exhibit to the complaint, and must give way to such assertion to title. 99 Ark. 218. It is the statement of facts, and not the prayer for relief, which constitutes the cause of action, and any relief warranted by the facts pleaded may be granted. 90 Ark 241. The Olson case, 156 Ark. 319, is controlling here.

OPINION

MCCULLOCH, C. J.

Appellant sold to appellee a musical instrument known as a "piano player," and took appellee's promissory notes, three in number, aggregating the sum of $ 600, for the balance of the purchase price. Each of the notes contained a stipulation that the title to the piano player should remain in the vendor until payment in full of the note.

Appellant instituted this action against appellee in the chancery court of Pike County in October, 1922, alleging that the sum of $ 592.07 was due and unpaid on the notes, and praying judgment therefor. The complaint contains an allegation that appellant "claims a vendor's lien on said piano to secure the payment of said indebtedness," and the prayer of the complaint is for the recovery of said amount due and unpaid on the notes, and that the same be decreed to be a lien on the piano, and "that an order be embodied in the summons herein directing the sheriff to take the said property and hold the same subject to the orders of the court." At the commencement of the action an order was issued in accordance with the prayer of the complaint, directing the sheriff to take the piano player and hold it subject to the orders of the court. This order was issued pursuant to the statute which provides that, in any action for the recovery of money contracted for property in possession of the vendee, "the court or clerk shall issue, on petition of the plaintiff, duly verified, describing the property and stating its value, at or after the commencement of such action, an order, which may be embodied in the original summons, stating the name of the court and the style of the action, and directing the sheriff or other officer to take the property described in the petition and hold the same subject to the orders of the court." Crawford & Moses' Digest, §§ 8729, 8730.

Appellee gave bond to retain possession of the piano player, and filed his answer pleading payment of the notes, and also pleading fraudulent misrepresentations on the part of appellant's agent in making the sale of the instrument. Appellee also filed a motion to transfer the cause to the circuit court for trial, but afterwards withdrew the motion, and, by consent, the cause was finally submitted in the chancery court.

There was evidence adduced concerning the circumstances attending the sale of the instrument to appellee by appellant's agent, and conversations and representations made at that time concerning the condition of the piano player, and there was also testimony introduced on the plea of payment...