Newbern v. Morris
| Decision Date | 02 October 1961 |
| Docket Number | No. 5-2457,5-2457 |
| Parties | Ila NEWBERN, Appellant, v. Joe and Virginia MORRIS, d/b/a Houston Taylor Motors, Appellees. |
| Court | Arkansas Supreme Court |
Rex W. Perkins and Charles Bass Trumbo, Fayetteville, for appellant.
Dickson, Putman & Millwee, Fayetteville, for appellees.
This case involves an action arising out of a conditional sales contract.
On January 2, 1958, appellees (Joe and Virginia Morris d/b/a Houston Taylor Motors) sold to appellant (Ila Newbern) under the terms of a conditional sales contract, a new 1958 Dodge automobile for a total time price of $3,554.64, payable at a rate of $98.74 per month for 36 months. Appellees assigned the contract to Universal C.I.T. Corporation with recourse. After making 21 monthly payments totaling $2,073.54, appellant failed and refused to make further monthly payments, parked the automobile on a public street in Fayetteville, and wrote a letter to Universal C.I.T. Corporation, dated April 30, 1960, stating that she was unable to continue payments, that she was forced to let the car go back, and that the automobile was in front of 225 North Block Street. Said letter was signed by appellant who gave her address as Marianna, Arkansas. Taped to the bottom of the letter were the keys to the automobile in suit.
Universal C.I.T. Corporation contacted appellees, required them to pay off the balance due under the contract under the recourse endorsement and turned the matter over to appellees. Appellees contacted their attorney, who advised them. Appellees waited approximately two weeks, during which time the automobile remained untended on the Fayetteville street while appellant resided in Marianna, and then had one of their employees tow the automobile from Block Street to the appellees' storage facilities which are used by the Sheriff's department in Fayetteville. According to the testimony of Virginia Morris, one of the appellees, the automobile was moved from Block Street into storage because it had been abandoned, and because appellees wanted to salvage what they could for both appellant and appellees by protecting the automobile against damage and vandalism. Appellees never again touched the automobile, nor did appellant ever come in to see about it.
Appellees filed suit in Circuit Court against appellant on the contract seeking the unpaid balance of $1,481.10, plus contractual attorney's fees, and had the automobile specifically attached under the provisions of Ark.Stats.Ann. § 34-2301 through § 34-2304
Appellant filed an answer generally denying all the allegations of appellees' complaint and alleging that the automobile had been repossessed and the debt had been cancelled.
The cause was tried on the 4th day of January 1961, before the court sitting as a jury. At the conclusion of the evidence, the court found that there was no repossession and awarded judgment in favor of appellees in the sum of $1,481.10 plus attorney's fees in the amount of $148.11 and costs. The automobile was ordered sold and the proceeds applied toward satisfaction of the judgment. From this judgment the defendant has prosecuted this appeal.
For reversal appellant contends only that there was no substantial evidence to support the trial court's findings.
This case presented a close fact question to be determined by the trial court sitting as a jury. After hearing all of the evidence, the trial court found that appellant had abandoned her automobile and that appellees took possession of the property for the purpose...
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