Lyons v. Stills

• Decision Date: 28 October 1896
• Citation: 37 S.W. 280
• Parties: LYONS v. STILLS.
• Court: Tennessee Supreme Court

37 S.W. 280

LYONS v. STILLS.

Supreme Court of Tennessee.

October 28, 1896.

Appeal from circuit court, Hawkins county; H. T. Campbell, Judge.

Action by W. J. Lyons against T. J. Stills. There was a judgment for defendant, and plaintiff appeals. Affirmed.

A. D. Huffmaster, for appellant. Gillenwaters & Sau, for appellee.

WILKES, J.

This case involves the life and death of a Texas pony. The plaintiff, Lyons, sold the pony to the defendant for $65, and took his note, retaining the title to the pony until she was paid for. Suit was brought on the note before a justice of the peace, and he gave judgment for the plaintiff. The circuit judge on appeal reversed the judgment, and the plaintiff has appealed to this court and assigned errors.

It appears that the plaintiff, Lyons, was a trader in Texas ponies, and sold the animal to the defendant, who was a farmer. The defendant was in the act of leading the pony away to carry her home, with an ordinary halter upon her, when the plaintiff suggested that a "slip halter" would suit the temperament and disposition of the animal better. He thereupon furnished the defendant with a slip halter, and had one of his experienced helpers to put it on the pony, and adjust it properly. He then advised the defendant to lead the pony home by the "slip halter," and not to turn her loose, or put her into a stable, but to tie her to a post until she was gentle. Defendant obeyed the instructions, and, following the direction of plaintiff, carried the pony home, and hitched her to a post, gave her some corn and fodder, and left her for the night. The next morning the defendant came around to see if the pony was making any progress towards getting gentle, and found her very quiet; in fact she was dead. He says that he does not certainly know what caused her death, but thinks it was because "she could not get her breath." This seems quite probable, as the "slip halter" was found to have "slipped" down and become tightened around her nostrils. It does not appear that she had any disease; certainly was full of life the evening before, and showed no signs of any ailment. She was a small pony mare, well formed, with bright eyes, and a remarkably active pair of heels. The defendant was sued on the note. He defended on the ground that he only took the pony on "probation" for six months, and by the contract had the right, at any time he was dissatisfied, to rescind the trade, and deliver up the pony. It does not appear that he made any effort to return the animal. His counsel excuse this on the ground that he was prevented by the "act of God." Defendant, in his proof,...