Appeal
from Jackson Circuit Court; Frederick D. Fulkerson, Judge
affirmed.
Dixon
Brothers sued Massey Brothers and one Hudson in replevin for
a certain carload of cedar posts.
Plaintiffs
claimed to have purchased the cedar posts from one Robert
Sanders, under the following agreement:
"This
agreement made and entered into this the 20th day of May, A
D. 104, by and between Robert Sanders, of Shipp's Ferry
Ark., party of the first part, and Dixon Brothers, of Mount
Olive, Ark., party of the second part.
"Witnesseth
That the said Robert Sanders has this day sold to the said
Dixon Brothers all the red cedar timber that is on his land
at and near Shipp's Ferry, Ark., at the following prices
when delivered at any siding, spur or shipping point on the
White River Railroad: [Here follows a scale of prices for
different dimensions.]
"The
said Robert Sanders agrees to use all diligence in working
and getting out the said timber, and further agrees to have
all of said timber worked out and on the railroad within
twelve months from date of this agreement. The said Robert
Sanders further agrees to work said timber up into such sizes
and lengths as may be suggested by the said Dixon Brothers.
"The
said Dixon Brothers agree to and have this day advanced to
the said Robert Sanders the sum of two hundred dollars ($
200.00) as a payment on said timber. They further agree to
advance the said Robert Sanders an additional two hundred
dollars as soon as he has placed enough of said cedar timber
at some shipping point on the White River Railroad to cover
the amount of the first payment.
"The
said Robert Sanders agrees to have timber to the amount of
two hundred dollars on said White River Railroad within 30
days from date of this agreement, and further agrees to have
an additional two hundred dollars' worth on said railroad
within 30 days from date of second payment by said Dixon
Brothers. Then the said Dixon Brothers agree to pay the said
Robert Sanders for timber as he places same on the White
River Railroad in carload lots or more or at such times as
the said Robert Sanders may designate. The said Dixon
Brothers further agree to at all times give the said Robert
Sanders a fair and honest inspection of said timber.
"Witness
our hands and seals, this May 20, 104.
"ROBERT
SANDERS, [Seal.]
"DIXON
BROTHERS, [Seal.]"
Defendants
Massey Brothers claimed to have purchased the cedar posts
from defendant Hudson, who bought from Sanders.
The
court gave the following instructions, viz:
"1.
If the jury believe from the evidence that, before the sale
from Sanders to Hudson, Sanders had sold the timber to Dixon
Brothers, then Sanders had no title to convey to Hudson, and
you may find for plaintiffs, unless you find that plaintiffs
are estopped as hereinafter mentioned.
"2.
You are instructed that if you find from the evidence in this
case that the title to the timber was immediately to pass to
Dixon Brothers as soon as writing relied upon was delivered,
you should find the right of possession of the posts in
question in Dixon Brothers, unless you further find from the
preponderance of the evidence that Dixon Brothers are
estopped as hereinafter set out; and if you fail to find from
the preponderance of the evidence that the title was to pass
immediately upon the delivery of the contract, but was to
depend upon the delivery of the posts when delivered on the
railroad, then you should find for the defendants.
"3.
That the burden of proof is on the plaintiff to establish his
title to the property in controversy; and, before you should
be authorized to find for the plaintiffs, you must find from
a preponderance that plaintiffs were the owners of the
property.
"4.
That if you believe from the greater weight of the evidence
in this case that Owen Dixon, one of the firm of Dixon
Brothers, who are plaintiffs in this case, stood by and
permitted, by his acts and conduct, Hudson to buy from
Sanders the cedar posts in controversy without protest, then
Dixon Brothers would be estopped in law from asserting a
claim of prior ownership against Hudson; and you should find
for defendant. Unless you so believe, you should find for the
plaintiffs on the question of estoppel.
"5.
That if you believe from the evidence that Hudson had notice
of Dixon Brothers' claim to the timber, but,
notwithstanding said notice, Hudson went upon the timber and
performed work upon it, and although Dixon Brothers knew of
this, yet plaintiffs are not thereby estopped by such
knowledge of such work. The plaintiffs claim this property by
virtue of a contract and sale from one Sanders. The
defendants, Massey Brothers, and Hudson, who is also a party
defendant in this case, claim by virtue of a sale and
delivery from Sanders to Hudson and from Hudson to Massey
Brothers. I read you certain instructions to guide you in the
determination of these questions in issue. The first question
is, whether or not the property belonged to Dixon Brothers at
all. The second question is, if it did belong to them, did
they lose it by being estopped by their acts and conduct as
herein defined? So I instruct you that if you believe from
the evidence that, before the sale by Sanders to Hudson,
Sanders had sold the timber to Dixon Brothers, then Sanders
had no title to convey to Hudson, and you should find for
plaintiffs, unless you should further find that plaintiffs
were estopped as heretofore mentioned. If you find from the
evidence in this case that the title to the timber was to
immediately pass to Dixon Brothers as soon as the title
relied upon by the plaintiffs was delivered, you should find
the right of possession of the posts in question in Dixon
Brothers, unless you further find from a preponderance of the
testimony that Dixon Brothers were estopped as hereinafter
set out."
The
court refused to give the following instructions to the jury
asked by defendants:
"1.
The jury are instructed that standing timber is realty, and a
conveyance of realty to be valid must be in writing. And if
you find from the evidence that the sale by Sanders to Hudson
[evidently means Dixon Brothers] was not in writing, then
such sale was void.
"2.
The jury are instructed that if they find from the evidence
that it was intended by the writing in evidence from Sanders
to Dixon Brothers to sell the red cedar upon certain lands
near Shipp's Ferry to Dixon Brothers, with the right in
said Dixon Brothers to pay therefor...
