Public Parks Amusement Co. v. Embree-Mclean Carriage Co.

• Decision Date: 17 April 1897
• Parties: PUBLIC PARKS AMUSEMENT CO. v. EMBREE-MCLEAN CARRIAGE Co
• Court: Arkansas Supreme Court

40 S.W. 582

64 Ark. 29

PUBLIC PARKS AMUSEMENT CO. v. EMBREE-MCLEAN CARRIAGE Co

Supreme Court of Arkansas

April 17, 1897

Appeal from Garland Circuit Court, ALEXANDER M. DUFFIE, Judge.

STATEMENT BY THE COURT.

This is an action in replevin by the appellee to recover certain passenger carts, a wagonette, and a phaeton sold and delivered by the appellee to the appellant upon the condition that the title to the same should remain in the appellee until they should be fully paid for.

Following is a copy of one of the notes, all of which are alike substantially, that were given for the purchase price of the vehicles:

"$ 127.34.

St Louis, May 21, 1891.

"Six months after date we, or either of us, promise to pay to the Embree-McLean Carriage Company, of St. Louis, Missouri, or order, one hundred twenty-seven 34-100 dollars, with exchange, and interest at 10 per cent. per annum from maturity. Value received. Negotiable. Payable at No. 15 South 10th Street, St. Louis, Missouri. It is understood and agreed that the title to the four two-passenger children's carts for which this note is given is, and shall remain, in the said Embree-McLean Carriage Company until this note is fully paid; it being further agreed and admitted that the said Embree-McLean Carriage Company, or assigns, have full power to take possessionof the personal property herein described whenever they deem themselves insecure, even before the maturity of this note, in which event this note shall remain in full force, in consideration of the previous use of the said property, and damage on contract, which is hereby acknowledged. If this note is not paid at maturity it shall then be due and payable at St. Louis," etc.

The statutes of Missouri in reference to conditional sales relied on by the appellant in its defense, are as follows:

"Sec 5180. Conditional Sales Void as to Creditors unless Recorded. In all cases where any property shall be sold to any person to be paid for in whole or in part in installments, or shall be leased, rented, hired or delivered to another on condition that the same shall belong to the person purchasing, leasing renting, hiring or receiving the same whenever the amount paid shall be a certain sum, or the value of such property, the title to the same to remain in the vendor, lessor, renter, hirer, or deliverer of the same until such sum, or the value of such property, or any part thereof, shall have been paid, such condition, in regard to the title so remaining until such payment, shall be void as to all subsequent purchasers in good faith and creditors, unless such condition shall be evidenced by writing executed, acknowledged and recorded as provided in cases of mortgages of personal property.

"Sec. 5181. Duty of Vendor before Taking Possession of Property. Whenever such property is so sold or leased, rented, hired, or delivered, it shall be unlawful for the vendor, lessor, renter, hirer, or deliverer, or his or their agent or servant, to take possession of said property without tendering or refunding to said purchaser, lessee, renter or hirer thereof, or any party receiving the same, the sum or sums of money so paid, after deducting therefrom a reasonable compensation for the use of such property, which shall in no case exceed 25 per cent. of the money so paid, anything in the contract to the contrary notwithstanding, and whether such conditions be expressed in such contract or not, unless such property has been broken or actually damaged, and then a reasonable compensation for such breakage or damage shall be allowed."

The court upon motion of appellee gave the following instructions:

"First. You are instructed that if you find from the evidence that the defendant, the Public Parks Amusement Company, executed the notes which were attached as exhibits to the deposition of James G. Embree, with the reservation of title therein contained, you should find for the plaintiff, Embree-McLean Carriage Company.

"Second. You are instructed that if you find from the evidence that the title to the wagonettes, phaeton, and carts was reserved in the vendor, Embree-McLean Carriage Company, until the price for each was paid, that the title remained in the said plaintiff until such condition was performed; and if you should further find that the vendee, Public Parks Amusement Company, afterward executed the deed of trust on said vehicles to John Loughran, trustee, for the benefit of Edward Butler, in good faith for a valuable consideration, that such deed of trust would not give any title to said trustee, John Loughran, nor to the said Edward Butler, which would defeat the plaintiff's right of action for the recovery of said vehicles.

"Third. The laws of the state of Missouri which have been read in evidence by the defendant are excluded from your consideration as competent testimony in the case."

The Public Parks Amusement Company and John Loughran, intervener, objected to the giving of each of the above instructions and saved their exceptions.

The Public Parks Amusement Company and the intervener, Loughran, asked the court to instruct the jury as follows, to-wit:

"First. The court instructs the jury that if they find from the evidence that on the 12th day of September, A. D., 1891, the Public Parks Amusement Company was in the possession of the property sued for in this cause, and on the 12th day of September, 1891, executed to John Loughran, trustee, for the use and benefit of Edward Butler, a deed of trust in which was included the property described in the complaint, and said deed of trust was so given and executed to secure the payment of a note of $ 10,000, and that said deed of trust was recorded in record Book, volume 6, pages 562 and 563 of the records of Garland county, Arkansas, and that said deed of trust was so executed and recorded before the institution of this suit, and that said $ 10,000 had not been liquidated by the Public Parks Amusement Company, they will find that the claim of Edward Butler is a valid lien on said property and that his rights under said deed of trust cannot be defeated by the plaintiff in...