Mcelhannon v. Coffman

• Decision Date: 14 March 1927
• Docket Number: 260
• Citation: 292 S.W. 393,173 Ark. 60
• Parties: MCELHANNON v. COFFMAN
• Court: Arkansas Supreme Court

292 S.W. 393

173 Ark. 60

MCELHANNON v. COFFMAN

No. 260

Supreme Court of Arkansas

March 14, 1927

Appeal from Montgomery Chancery Court; W. R. Duffie, Chancellor reversed.

Decree reversed, and cause remanded.

John H Crawford, Dwight H. Crawford and D. F. McElhannon, for appellant.

Appellee pro se.

OPINION

WOOD, J.

On December 15, 1924, Jack Coffman purchased from Fleming & McElhannon an automobile for which he paid the sum of $ 522.25 and executed his note in the sum of $ 1,045.34, to be paid in equal installments of $ 87.12 on the 15th day of each month thereafter. Coffman and Fleming also on that day entered into a written contract of sale, by the terms of which the title to the car was retained in the vendors until the purchase price was paid in full. The note provided that, if any installment was not paid when due, the remaining installments would then become due at the option of the holder. The notes and written contract evidenced the contract of sale. This note and contract were transferred to the Commercial Credit Company, a Louisiana corporation, for valuable consideration before maturity. Nothing was paid on the note by Coffman, Fleming & McElhannon, and this action was instituted by the credit company against the appellants to recover the balance due on the note, and the plaintiff prayed that a vendor's lien be declared on the automobile and that same be held subject to the orders of the court, and that plaintiffs have judgment against the defendants in the sum of $ 1,045.34, and that the automobile be sold to satisfy such judgment if same were not paid. Appellant Fleming died before the institution of the action, and the action proceeded against Mrs. Fleming, as the executor of Fleming's estate, and McElhannon.

Jack Coffman, in a separate answer, denied the execution of the note and contract, and that same had been assigned to the credit company, and denied liability. He alleged that the car in controversy was purchased by him from Fleming & McElhannon on December 14, 1924, and that the note and contract upon which the action is predicated were executed on that day, which was Sunday. He therefore alleged that the contract was void. He alleged that he paid to Fleming & McElhannon the sum of $ 600 on that day on the purchase price of the automobile, and he prayed that the note and contract be declared void and that he have judgment against Fleming & McElhannon in that sum.

The answer of the appellants admitted the execution of the notes and contract by the appellee and that the credit company was the holder thereof for value. They alleged that Coffman was primarily liable on the note, and prayed that, if judgment be rendered against them and their codefendant, Jack Coffman, that the automobile be sold and the proceeds applied to the payment of the judgment, and that they have judgment against Coffman for any balance which they might be compelled to pay, after the proceeds of the sale were applied to the satisfaction of the judgment.

In answer to the cross-complaint of Jack Coffman they denied that the automobile was sold and delivered to Coffman on Sunday, December 14, 1924, but alleged that, if the sale had been made on Sunday, Coffman thereafter, on a week day, had ratified the same by promising to pay for the car and by retaining possession and using the same from the time of his purchase. They denied that Coffman had paid more than had been credited on the note, and denied liability to Coffman in any sum.

The undisputed testimony was to the effect that the note and contract evidencing the sale of the car in controversy were executed on Sunday. It also showed that appellee, credit company, was a bona fide holder of the note, and that the note was past due. The testimony of Coffman was to the effect that, at the time he purchased the car, he paid the sum of $ 200 in cash and an old car, and that he should have had a credit of $ 600 on the note instead of $ 522.25. He kept the car five months. It was in good condition when the sheriff took it from him. He had not paid the note. He ran the car a couple of thousand miles. Something was the matter with it, and the sellers came up and fixed it, and he then stated to them that the car was too big and he wanted them to take it back. He offered to give them his old car and pay the $ 200 note to let him out. He sent the credit company a check, but stopped payment on same before it was presented. He did not tell the sellers of the car that, if they would fix it up, he would keep it. He wrote to the credit company that he would not pay any more, and wanted it to take the car. At the time he signed the note he expected to pay for the car, but changed his mind the next morning, which was Monday, and then told the sellers of the car, a week or two later, that he wanted them to take the car back. He ran the car in the meantime. He continued to run the car after the credit company asked him to pay for it, which was in January, and was running it when the sheriff came for it. Witness never had any agreement with the credit company to pay them anything at any time.

A witness on behalf of Coffman testified that he was present when Coffman and McElhannon traded cars. Coffman traded a Baby Overland which he priced to them at $ 400. Witness supposed they agreed to give it, as they took it away and left the new car.

Witness Ross testified for the appellees in substance that he was working for Fleming & McElhannon at the time of the sale of the car in controversy to Coffman. Coffman agreed to give his car, and executed his note for $ 200 for the first payment. Witness...