Priest v. Hodges

• Decision Date: 05 April 1909
• Parties: PRIEST v. HODGES
• Court: Arkansas Supreme Court

118 S.W. 253

90 Ark. 131

PRIEST v. HODGES

Supreme Court of Arkansas

April 5, 1909

Appeal from Lonoke Circuit Court; Eugene Lankford, Judge; reversed.

Judgment reversed and cause remanded.

Thos C. Trimble, Jr., for appellant.

OPINION

FRAUENTHAL, J.

This is a replevin suit, which was instituted by the plaintiff, W R. Priest, against the defendant, E. R. Hodges, for the recovery of the possession of a mule. The plaintiff claimed the property by virtue of a mortgage which had been executed to him by one W. I. Rainey, to secure the payment of a note for $ 40 and interest. The defendant claimed to be the owner of the property by purchase from parties who had obtained it from said mortgagor; and upon his motion W. I. Rainey was made a party defendant to the suit. The defendants admitted the execution and validity of the mortgage and note, but alleged that all the indebtedness mentioned in the mortgage, except five dollars, had been paid, and in their answer made tender thereof. They also alleged that plaintiff had released the mule from the mortgage. The jury returned a verdict for the defendants; and from the judgment rendered thereon plaintiff prosecutes this appeal.

The only question presented by this appeal is whether or not there is sufficient evidence to sustain the verdict of the jury. The only witnesses who testified in the case were the defendant, Rainey, and the plaintiff, Priest. We must, in determining whether there is sufficient evidence to sustain the verdict, take that view of it which is most favorable to the defendants.

From the testimony of the defendant Rainey, it would appear that he executed the note and mortgage to plaintiff, and that the mortgage conveyed the mule in controversy and one bale of cotton. On December 24th Rainey brought to town a bale of cotton and threw the same on the scales on the platform at the depot where the plaintiff had his cotton weighed. He supposed that the scales were public scales, thought plaintiff had his cotton weighed there. He then went to plaintiff's store and spoke to plaintiff of the cotton; and plaintiff, being busy with his customers, told him that he could not attend to it. He then left and returned the same evening in order to weigh the cotton, but plaintiff was still busy, and nothing was done or said relative to the cotton. During the night the depot and cotton were destroyed by fire. No weight of the cotton was taken, and no price for the cotton was mentioned, and plaintiff did not see the cotton, so far as the testimony shows, nor did plaintiff tell Rainey where to put the cotton, and he did not speak to him relative to it, except to tell him that he had no time to attend to the matter. A few days before he brought the bale of cotton in, Rainey told plaintiff that he had traded the mule, but that he still had the cotton; and the plaintiff then told him that the cotton was what he wanted, and that if he would bring him the cotton and pay the indebtedness before Christmas he would knock off the interest. This is the entire evidence in its most favorable aspect for defendants. From this we do not find any evidence which sustains the contention that plaintiff released the mule from the mortgage. Rainey traded the mule before speaking to plaintiff about it, and after he had thus traded he then told him that he had traded it, and in order to placate him told plaintiff that he still had cotton. The plaintiff did not say that he consented to the trading of the mule; but, like one who had by this information become anxious for the payment of his debt, he told Rainey that if he would bring him cotton and pay the debt he would knock off the interest. Neither by his words nor his acts did plaintiff indicate that he gave his consent to the trading of the mule which had been done by Rainey, or that he released the mule. The above was all the testimony of any conversation or circumstance relative to the release of the mule; and we do not think that it is sufficient to sustain a finding that plaintiff released the mule from the mortgage.

It is contended by defendants that Rainey paid the mortgage debt. The only payment that it is claimed that he made is by the alleged sale of the bale of cotton to plaintiff. The undisputed evidence is that the amount of the debt was $ 40 and some interest. There is no evidence at all as to the weight of the bale of cotton or as to its quality or value. There is no testimony showing whether it was worth the amount of the debt. It is true that the answer of defendant tenders the sum of five dollars, which he claims he still owes on the indebtedness, but there was no testimony as to this. So that, even if Rainey sold the bale of cotton to plaintiff, the evidence is not sufficient to show that the mortgage indebtedness was thereby paid in full.

The question now recurs as to whether or not Rainey sold the cotton to plaintiff. It is an elementary principle of law that it is essential to the sale of a chattel, like in every contract, that there must be a meeting of the minds and an agreement by both of the parties to the sale and...