Rex Buggy Company v. Ross

• Decision Date: 29 October 1906
• Citation: 97 S.W. 291,80 Ark. 388
• Parties: REX BUGGY COMPANY v. ROSS
• Court: Arkansas Supreme Court

97 S.W. 291

80 Ark. 388

REX BUGGY COMPANY v. ROSS

Supreme Court of Arkansas

October 29, 1906

Appeal from Pulaski Circuit Court, Second Division; Edward W Winfield, Judge; affirmed.

Judgment affirmed.

H. F Auten and Carmichael, Brooks & Powers, for appellant.

1. It appears by appellee's own testimony that he had sold some of the goods, and had made no remittance therefor. This was a breach of the contract, which released appellant and gave it the right to demand a new contract. Anson on Contracts, (2 Ed.), 363; 60 C. C. A. 623; 125 F. 892; Lawson on Contracts (2 Ed.), 531. The breach was sufficient to justify appellant in stopping the car. By his own testimony appellee was insolvent. Insolvency is not dependent upon formal adjudication. A debtor is insolvent who is unable to pay his debts as they fall due in the ordinary course of business. 46 A. 328; 13 Fed. Cas. 299; 83 U.S. 584; 20 Conn. 53; 30 Ark 378.

2. It was error in the 7th instruction to call the jury's special attention to the protest of the note, leaving out all other facts of insolvency shown in the record, and to tell the jury that this was not conclusive. 57 Ark. 512; 74 Ark. 452; 50 Ark. 477; Century Dict., "Conclusive."

Morris M. Cohn, for appellee.

1. Appellant's contention that there was a breach of contract on the part of appellee is unreasonable. The sale of buggies in February had nothing to do with the buggies replevied in this case. As to his being insolvent, appellee is unimpeached in his showing that he was worth from $ 15,000 to $ 18,000 above all his debts, in bills receivable, merchandise and real estate. 62 Ark. 22.

2. It was proper to give the seventh instruction; but, if it was objectionable, appellant should have pointed out its specific grounds of objection, and should have asked for a correct instruction. 47 Ark. 196. If on the whole case the verdict is right, it is immaterial that the instruction was misleading. 54 Ark. 289; 56 Ark. 594; 62 Ark. 228.

OPINION

BATTLE, J.

The Rex Buggy Company sold to Charles H. Ross two carloads of buggies. Each carload was purchased under separate orders and at different times. This action was brought by the company against the St. Louis, Iron Mountain & Southern Railway Company and Ross for the possession of the carload purchased last. The complaint in the action contains allegations as to the first carload. But, as the purchases of the two carloads were separate transactions, they should have been omitted, and we shall say nothing about them. Plaintiff alleges that it sold to Ross a certain carload of buggies on condition that the title should remain in plaintiff until they were paid for, and that they should be sold at retail by Ross, and the proceeds of each buggy as sold should be delivered to it; that it shipped the carload to Ross on the 14th of April, 1904, in a car No. 13,549 of the St. Louis, Iron Mountain & Southern Railway Company, at the same time forwarding the bill of lading executed therefor to Ross; that the carload was of the value of $ 2,142.50; that thereafter, and before the buggies were delivered by the railway company, learning that Ross was insolvent, it stopped the goods in transitu in the possession of the railway company; that the defendants, although requested to do so, refused to deliver possession to the plaintiff; and that it is entitled to the possession thereof.

The defendant Ross answered, and denied that he was insolvent, and that plaintiff had the right to stop the buggies in transitu; admitted that he purchased the buggies; that he has the bill of lading therefor; and claims the same, and offered to comply with the terms of the sale; and alleged that he was damaged by being deprived of the sale and possession of the goods in the sum of $ 1,000, and asked for judgment.

By consent of all the parties the action as to the railway company was dismissed.

A jury tried the issues in the case, and, after hearing the evidence adduced by both parties and the instructions of the court, returned a verdict in favor of the defendant, Ross, for $ 250 damages. Plaintiff appealed.

Appellant contends that the verdict was not sustained by...