Schenck v. Griffith

• Court: Supreme Court of Arkansas
• Writing for the Court: WOOD, J.
• Citation: 86 S.W. 850,74 Ark. 557
• Parties: SCHENCK v. GRIFFITH
• Decision Date: 25 March 1905

86 S.W. 850

74 Ark. 557

SCHENCK
v.
GRIFFITH

Supreme Court of Arkansas

March 25, 1905

Appeal from Fulton Circuit Court, THOMAS I. HERRN, Special Judge.

Affirmed.

Schenck sued Griffith in replevin for a mare. Defendant answered that he was the owner of the mare by purchase from one Ike Davis; that he was an innocent purchaser without notice of plaintiff's rights.

Plaintiff testified that he was the owner of the mare; that he made a contract with Ike Davis to sell him the mare for some work; that nothing was said at the time about retaining the title of the mare until the work was done. A short time afterward Davis came and asked for the mare. Plaintiff told him that his children had the mare away from home, and that when they returned he could have her. "A few days after my children came home Davis sent his boy, who was about 14 years old, after the mare. I went to the barn, and brought the mare to the drug store, and, after hitching her, I went into the drug store, and then I called John Davis and George Ragsdale, and, in the presence of Ike Davis' boy and these two men, I said that Ike Davis was to make boards, and cover my barn, and make me 500 rails for this mare, and that the mare was to be mine until the work was completed. I told the boy to tell his father that the mare was not his until the work was done. I then let the boy have the mare. They all heard what I said." Plaintiff testified that the work which Davis agreed to do for the mare was never done.

Ike Davis testified: "I am acquainted with the plaintiff, J. A. Schenck. About the 1st of August, 1900, I made a trade with him at Hardy for the mare in controversy. I was to cover a barn and make 500 rails for the mare. The mare was there at the time we traded, and the reason that I did not take her was that Dr. Schneck said that his children were going on a visit to Izard County, and were going to use her, but told me that just as soon as they returned I might come and get her, and in about two weeks I went to get the mare, and when I got there they had not got back with her. I told Mr. Schenck that I didn't know whether I could come the next time or not, but if I didn't come I would send my little boy. So, in a few days I sent my little boy to Schenck's after the mare, and he brought her to me, and he never told me anything that Schenck should have said. At the time that I traded for this mare there was nothing said about the title to said mare remaining in Schenck, or nothing was said about the title passing to me. I traded the mare in controversy to Terry Griffith.

Terry Griffith testified that he had no notice that Dr. Schenck claimed the mare until after he traded for her.

The court instructed the jury as follows:

"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.

"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.

"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...