Keller v. Sawyer

• Decision Date: 15 July 1912
• Citation: 149 S.W. 334,104 Ark. 375
• Parties: KELLER v. SAWYER
• Court: Arkansas Supreme Court

149 S.W. 334

104 Ark. 375

KELLER v. SAWYER

Supreme Court of Arkansas

July 15, 1912

Appeal from Ashley Circuit Court; Henry W. Wells, Judge; judgment modified.

Judgment reversed and cause remanded.

Compere & Compere and George & Butler, for appellants.

A. W Files and J. C. Brown, for appellee.

OPINION

WOOD J.

This is a suit brought in a justice of the peace court by appellee against the appellants and one Burnsides to recover $ 300 in Ashley County warrants or scrip, which appellee alleged were worth $ 200 or $ 225. He alleged that the scrip was deposited "with defendant by one G. P. Roberts in the name of E. A. Burnsides but for the benefit of the plaintiff;" that the plaintiff was the owner, and that defendants were retaining the scrip under the false claim that the same belonged to Burnsides. The cause proceeded to trial in the justice's court, and judgment was rendered in favor of the plaintiff below, appellee here, against Keller and Burnsides "for $ 300 in Ashley County scrip of the value of $ 150." Judgment was also entered in favor of the Wilmot Bank, discharging it from liability. Burnsides did not appeal. The appellant Keller appealed to the circuit court, where the case was again tried before a jury, and it returned the following verdict: "We, the jury, find for the plaintiff, and that the amount of the scrip be returned or its value." The court entered the following judgment: "That the plaintiff have and recover of and from the defendant the sum of three hundred dollars in Ashley County scrip or the value thereof."

The testimony on behalf of the appellee tended to show that he was arrested under a warrant issued by a justice of the peace in Ashley County on a charge of stealing cattle; that Burnsides, the officer having him in charge, had gone on his bond in the sum of three hundred dollars for his appearance before the magistrate; that Burnsides had taken a mortgage on some cattle to indemnify him in the event that he should have the bond to pay; that he afterwards agreed to release the mortgage, and accepted the sum of $ 300 in Ashley County scrip; that G. P. Roberts, the father-in-law of appellee, furnished the scrip, and that he and Burnsides went into the Wilmot Bank, at Wilmot, Arkansas, and Roberts or Burnsides passed the scrip over the counter to the appellant Keller, who was the cashier of the bank; that it was understood between Roberts and Burnsides that the scrip was deposited with the the bank with the understanding that, in case Burnsides had the bond to pay the bank was to deliver to him the scrip, but if he did not have the bond to pay then the scrip should be the property of Roberts. The proof is uncertain as to whether Keller, the cashier of the bank, at the time he received the scrip, knew of such understanding between Roberts and Burnsides.

The testimony on behalf of the appellant Keller tends to show that at the time the scrip was deposited he did not know of such agreement; that the scrip was deposited with him as cashier of the bank by Burnsides and in his name. But the testimony on behalf of appellee tends to show that afterwards the appellant Keller was notified, while the scrip was still in his possession as cashier of the bank, that it belonged to the appellee; that he had purchased the same from Roberts.

Without going into detail in setting out the evidence, it is sufficient to say that there was testimony to warrant a finding by the jury that appellant was notified by G. P. Roberts, who delivered the scrip to Burnsides, that the scrip was deposited in the bank with the understanding that it was to be held by the bank for the benefit of Burnsides if he had to pay the amount of appellee's bond, but, that, unless he did have such bond to pay, the scrip was to be held for the benefit of Roberts. The proof tended to show, on behalf of appellee, that he afterwards purchased the scrip from Roberts, paying him the sum of fifty cents on the dollar therefor, and that appellant was notified of such purchase.

The evidence also tended to show that Roberts, before he sold the scrip to appellee Sawyer, notified appellant Keller that the scrip belonged to him and demanded the same of him. and that Keller refused to deliver the same to Roberts; that he was also notified by appellee, after he had purchased the scrip that same belonged to him, and demand was made upon him for same and he refused to deliver it.

The testimony on behalf of app...