Schenck v. Griffith

• Decision Date: 25 March 1905
• Citation: 86 S.W. 850
• Parties: SCHENCK v. GRIFFITH.
• Court: Arkansas Supreme Court

86 S.W. 850

SCHENCK v. GRIFFITH.

Supreme Court of Arkansas.

March 25, 1905.

Appeal from Circuit Court, Fulton County; Thomas I. Herrn, Special Judge.

Action by J. A. Schenck against Terry Griffith to recover possession of a horse claimed by defendant under a purchase from one Ike Davis. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

The court instructed the jury as follows:

Instruction No. 1: "The court instructs the jury that this is an action of replevin, wherein plaintiff, Schenck, and the defendant, Griffith, both claim to be the owner of the mare in controversy in this suit, the defendant claiming the mare by purchase from Ike Davis. The court instructs the jury that the defendant, Griffith, only acquired such interest in the mare as Davis had at the time of his purchase, and, if Davis had no title at that time, the defendant, Griffith, would get nothing by his purchase."

Instruction No. 2: "The court instructs the jury that in contracts of this kind between plaintiff, Schenck, and Davis, the doing of the work according to contract is a condition precedent, and the said Davis would have to have done the work according to contract before he could claim the mare in controversy, which was his pay for doing the work, unless you find from the testimony that plaintiff delivered the mare to Davis in accordance with the contract without an express reservation of title in himself."

Instruction No. 4: "The court instructs the jury that if you find from the evidence in this case that the plaintiff in this transaction with Davis had reserved the title in himself to the mare in controversy in this suit until Davis had done the work, and you further find that Davis had not done the work according to contract, then in that event the plaintiff would be entitled to recover."

Instruction No. 5: "The jury are instructed that, if you find for the plaintiff, that you should find the value of the mare at such amount as the evidence shows her to have been worth at the commencement of this action, and you should also find for the plaintiff to the amount the evidence shows her usable value to have been worth from the time this suit was brought in the justice court until now."

Instruction No. 3½: "The jury are instructed that if they find from a preponderance of the evidence that plaintiff sold the mare in controversy to Ike Davis, and that there was no agreement between the said defendant and Ike Davis, made at the time, that this title should remain in plaintiff until she was fully paid for, and the said Ike Davis sent his son after the mare, and that plaintiff delivered the mare to the son of Ike Davis, and called witnesses that the title to said mare should remain in him until fully paid, and that the son of Ike Davis understood and heard said statements by the plaintiff, then they would be authorized to find for the plaintiff."

Plaintiff offered instruction No. 3, which was as follows:

"The court instructs the jury that if you find from the evidence that after the contract between Davis and Schenck was made, and at the time of the delivery of the mare, that Davis sent his son after the mare, then for that purpose he constituted his son his agent; and if you find that plaintiff, Schenck, delivered the mare to Davis' son, and at the time reserved the title in himself, and it makes no difference whether the son informed the father or not"—which was refused, as was also plaintiff's instruction No. 6, which was as follows:

"The court instructs the jury that if they find from the evidence that Ike Davis sent his son to receive of the plaintiff the mare in question, and that said mare was delivered to the son of Ike Davis by plaintiff, in that event he would be for that purpose the agent of Ike Davis, and that Davis would be bound by what was said and done at that time,...