Johnson v. St. Louis Butchers' Supply Co.

• Decision Date: 06 April 1895
• Citation: 30 S.W. 429
• Parties: JOHNSON v. ST. LOUIS BUTCHERS' SUPPLY CO.
• Court: Arkansas Supreme Court

30 S.W. 429

JOHNSON v. ST. LOUIS BUTCHERS' SUPPLY CO.

Supreme Court of Arkansas.

April 6, 1895.

Appeal from circuit court, Washington county; Edward S. McDaniel, Judge.

Action by the St. Louis Butchers' Supply Company against J. F. Johnson. From a judgment for plaintiff, defendant appeals. Reversed.

This was a suit in replevin to recover from the defendant (appellant) a certain fancy refrigerator, which plaintiff (appellee) had sold to the defendant, and upon which defendant had executed a mortgage back to plaintiff to secure it for the purchase money. Plaintiff claimed to be entitled to the possession of the refrigerator under the mortgage. The defendant answered, admitting the contract of sale evidenced by the notes for the purchase money and the mortgage to secure them, but denied plaintiff's right to possession, and set up as grounds of defense in the second paragraph of his answer substantially that he was a butcher, and engaged in the sale of fresh meats, and that plaintiff was a manufacturer of refrigerators, and represented to him that the refrigerator he purchased was made of first-class material, well and skillfully constructed, and with a supply of a certain quantity of ice — 100 or 150 pounds — would keep meats perfectly sound for 14 days during the hottest weather; that defendant, relying solely upon such representations, bought of plaintiff said refrigerator, paying therefor the sum of $40 in cash and executing his notes for balance, together with the mortgage to secure same; that he had paid out as expenses in setting up said refrigerator the sum of $19.80, and that, with the $40 he had paid in cash, and the sum of $15 which he tendered in court, was largely in excess of the value of said refrigerator; that the amount he had paid in cash and the amount he tendered was equal to the value of same. He alleged that all of said representations, with regard to skillful construction of the refrigerator, preservation of meats, by using certain quantities of ice, etc., were false. Defendant states that plaintiff was a nonresident, and has no property in the state to indemnify him for his losses and damages on account of said false and fraudulent representations, and prays that the value of said refrigerator be investigated, and for all proper relief. The court sustained a demurrer to this paragraph of the answer, and upon the issue made by the first paragraph the cause was submitted to the court sitting as a jury. The issues were found for ...