Little Rock Vehicle & Implement Co. v. Robinson

• Decision Date: 27 May 1905
• Parties: LITTLE ROCK VEHICLE & IMPLEMENT COMPANY v. ROBINSON
• Court: Arkansas Supreme Court

87 S.W. 1029

75 Ark. 548

LITTLE ROCK VEHICLE & IMPLEMENT COMPANY v. ROBINSON

Supreme Court of Arkansas

May 27, 1905

Appeal from Pulaski Circuit Court, EDWARD W. WINFIELD, Judge.

Reversed.

STATEMENT BY THE COURT.

This is a suit brought by appellee, Etta Robinson, against appellant for damages for the conversion of a buggy. Appellant had sold her the buggy for $ 125, part cash paid and balance evidenced by her note, in which the title to the buggy was retained in appellant until payment of the note. She paid the note down to $ 17.50, and when appellant's collector came to see her about it she gave him an order for the buggy to one Sehader who held it for a repair bill, and also gave the collector $ 5 with which to pay Schader's bill. The buggy had also been attached by one Adams for a repair bill due and the attachment suit was then pending. Appellant, in order to get possession of the buggy, paid the Adams bill and cost of suit, amounting to $ 10.65, and the suit was dismissed. After keeping the buggy about three months, appellant sold it.

There is a conflict in the testimony as to the agreement between the parties when the buggy was delivered to appellant. The secretary of appellant corporation, testified that, after he received the buggy into his possession, appellee came to see him, and agreed to pay $ 10 that week and the balance due on the note and the Adams bill, $ 10.65, within ten days thereafter, but that she never returned or paid anything. Appellee denied that she agreed to pay the Adams bill, but admitted that she owed Adams $ 8 for repairing the buggy. She testified that appellee took her buggy, and before the sale of it she offered to pay the balance due on the note, $ 17.50, and that appellant's secretary refused to accept it, and demanded payment of the Adams bill before he would release the buggy.

Appellant asked the court to give, among others, the following instruction, which was refused, and exceptions were duly saved:

"2. If you find that, at the time or after the defendant took possession of the buggy, it had an agreement with plaintiff whereby plaintiff was to pay the balance due defendant on the buggy, together with the sum due for repairs by Adams, within a time named, and further find that plaintiff failed to pay said sum, or tender the same within that time, then defendant had the right to sell the buggy, and devote the proceeds to its own use, without further notice to plaintiff."

The jury returned a verdict in favor of the plaintiff for $ 42.50, under instruction which told them that in the event they found for the plaintiff the measure of damages would be the value of the buggy, less $ 17.50.

Judgment reversed and cause remanded.

Pugh & Wiley, for appellant.

The vendor had the right to retake his property after default in payment, and to dispose of same as he saw fit. 49 Ark. 63; 55 Ark. 642; 47 Ark. 363; 48 Ark. 160. The law presumes that a letter, properly addresses and mailed, reaches the party addressed, and the burden is upon the appellee to show that the letter was not received. 22 Am. & Eng. Enc. Law, 1252; 60 Ark. 539.

F. T Vaughan,...