J. T. Fargason Company v. Bank of Lepanto

• Decision Date: 23 October 1922
• Docket Number: 219
• Citation: 244 S.W. 456,155 Ark. 361
• Parties: J. T. FARGASON COMPANY v. BANK OF LEPANTO
• Court: Arkansas Supreme Court

244 S.W. 456

155 Ark. 361

J. T. FARGASON COMPANY v. BANK OF LEPANTO

No. 219

Supreme Court of Arkansas

October 23, 1922

Appeal from Crittenden Circuit Court, J. M. Futrell, Judge affirmed.

Judgment affirmed.

Jas R. McDowell, for appellant.

The contract between Stuckey and the bank was purely executory being only an agreement to deliver to the bank all cotton purchased by Stuckey, at a stipulated price. These conditions were not performed as to the cotton in question, and no title passed to the bank. 72 Ark. 141; 25 Ark. 545; 24 R. C. L. 313, 50 Ark. 291. Such contract, though good between the parties, is not binding as to third parties. 47 Ark. 210. A contract for the sale of a large number of bales of cotton to be afterward acquired, does not pass title to any particular bales. 78 Ark. 511. Where a vendor is left in possession under an executory contract to sell, the property may be seized for his debts. 54 Ark. 308.

John W. Scobey, for appellee.

Both sides asked for a directed verdict, which has the effect of submitting the case to the court for determination, and there being evidence to support the court's finding, the same should not be disturbed on appeal. 138 Ark. 172. The finding that the bill of sale passed title to the bank is conclusive. 148 Ark. 576.

The title to personal property may pass and the sale be complete where it is the intention of the parties to buy and sell, even though there remains something to be done, like fixing the price, etc. 102 Ark. 344; 104 Ark. 250; 148 Ark. 576.

OPINION

SMITH, J.

At the conclusion of all the testimony on the trial of this cause in the court below each party asked an instructed verdict, and neither asked any other instruction. Under our practice this is, in effect, a withdrawal of the case from the jury and the submission of it to the court, in which event it becomes our duty, on appeal, to view the case as if a jury had passed upon it and to sustain the court's finding if the testimony tending to support the finding is legally sufficient for that purpose. Webber v. Rodgers, 128 Ark. 25, 193 S.W. 87; Watkins v. Louisiana State Life Ins. Co., 151 Ark. 596, 237 S.W. 89.

The facts, therefore, may be stated as follows: Sam Stuckey was the managing partner of the Sam Stuckey Company, which copartnership was engaged in the general furnishing business at Lepanto, Arkansas. This firm bought cotton prior to 1920 which was shipped to J. T. Fargason Company at Memphis, Tennessee. That company made advances on consignments of cotton which it held both as a factor and as a creditor to be sold by it for the account of Stuckey Company. At the beginning of the cotton season in the fall of 1920 Fargason Company held for the account of Stuckey Company about 150 bales, on which a balance of more than $ 20,000 was due. This cotton was finally sold for the account of Stuckey Company, and through the depreciation in price of cotton a large balance was left owing the Fargason Company on account of advances.

The Stuckey Company planned to buy cotton in the fall of 1920, and arranged for advances to be made by the Bank of Lepanto for that purpose. The following agreement was executed between Stuckey Company and the bank:

"BILL OF SALE.

"This memorandum witnesseth that, for the hereinafter mentioned consideration, Sam Stuckey Company, of the county of Poinsett, State of Arkansas, hereinafter called 'seller,' has this day sold to Bank of Lepanto, of the county of Poinsett, State of Arkansas, hereinafter called the 'buyer,' all cotton of every grade and description which they may buy between this date and December 1, 1920, from any persons or firms whomsoever.

"Seller agrees to deliver all such cotton within the dates aforesaid to buyer, at the warehouse in the town of Lepanto, county of Poinsett and State of Arkansas, free of all charges; and buyer, in consideration thereof, hereby pays seller the sum of one dollar, receipt whereof is hereby acknowledged by seller, and further agrees to pay seller the full purchase price of the cotton bought as aforesaid, on such dates as such cotton is bought.

"The Bank of Lepanto retains absolute title in the cotton aforesaid until it relinquishes its title in legal form. And at any time said Bank of Lepanto so directs, the seller shall, as agent of said Bank of Lepanto, ship said cotton to Memphis, Tennessee, to be placed with cotton factors to the credit of said Bank of Lepanto.

"In witness whereof, we have hereunto set our hands this the 20th day of September, 1920.

"SAM STUCKEY COMPANY,

"BANK OF LEPANTO,

"W. R. Payne, V. President."

Stuckey bought cotton in the Lepanto market and paid for it with drafts drawn on the bank, and prior to the transaction out of which this litigation arose sold all the cotton so bought to O'Brien, the local agent of Farnsworth-Evans Company, cotton factors, doing business in Memphis, Tennessee.

The plan of operation was for Stuckey Company to repay the bank after selling the cotton. Any profit earned would have belonged to the Stuckey Company and any loss would have fallen on them.

Pursuant to this arrangement, Stuckey bought 26 bales of cotton, which he contracted to sell to O'Brien, for the Farnsworth-Evans Company. This sale was made on Friday, and the price was to be determined by the opening quotation on the Memphis market the following day. This sale, like all others made by Stuckey to Farnsworth-Evans Company, was made after consultation with Payne, the cashier of the bank, and with the approval of that officer, although O'Brien knew nothing of the bank's interest in the cotton. The market opened on Saturday one hundred points off, and Stuckey asked O'Brien to release him from the trade. This O'Brien agreed to do after consultation with the Memphis office of his firm, although the cotton had been shipped to his firm at Memphis....