W. W. Johnson Company v. Triplett

• Decision Date: 04 March 1899
• Citation: W. W. Johnson Company v. Triplett, 50 S.W. 455, 66 Ark. 233 (Ark. 1899)
• Parties: W. W. JOHNSON COMPANY v. TRIPLETT
• Court: Arkansas Supreme Court

50 S.W. 455

66 Ark. 233

W. W. JOHNSON COMPANY v. TRIPLETT

Supreme Court of Arkansas

March 4, 1899

APPEAL from Jefferson Circuit Court, JOHN M. ELLIOTT, Judge.

Judgment reversed and cause remanded for new trial.

Bridges & Wooldridge, for appellant.

It was error for the court to instruct the jury that it should not take into consideration the false representations made by Wertheimer as to her solvency, unless they should find that she purchased the goods with the preconceived intention of not paying for them.64 Ark. 12.This vice in the first second, third, sixth, seventh and eighth instructions is not cured by giving other and correct instructions on the point.44 S.W. 715.

Austin & Taylor, for appellee.

Before plaintiff could maintain any suit it was necessary to place Wertheimer in status quo by returning the acceptance given for goods.59 Ark. 259;35 Ark. 483.Since the sheriff did not claim title, demand was necessary before suit.23 Ark 417;24 Ark. 264;35 Ark. 169.A judgment which is right upon the whole record will not be reversed, though incompetent evidence was admitted or improper instructions given.10 Ark 9;44 Ark. 556;46 Ark. 542;43 Ark. 296;24 Ark. 587.

OPINION

WOOD, J.

This suit was brought on the 14th day of April, 1896, by appellant, W. W. Johnson Company, to replevy ten barrels of liquor from appellee, C. H. Triplett, sheriff of Jefferson county.The liquor was sold for $ 580.63 on a credit of two and four months by appellant on February 29, 1896, to E. Wertheimer, who was at that time engaged in the wholesale liquor business at Pine Bluff, Arkansas.On December 4, 1895, Ed. Wertheimer, son of and representing E. Wertheimer in her business, made a commercial statement of the financial condition of her business, as it existed November 1, 1895, unto Damon Clarke as a representative of the commercial agency of R. G. Dun & Co., a copy of which statement was forwarded by the Little Rock office of the agency to its office in Cincinnati, Ohio.The appellant obtained a copy of this statement from the Cincinnati office of this commercial agency, and, relying upon the truthfulness of the statement, sold the liquors in question, and other goods, to E. Wertheimer.The business of E. Wertheimer was conducted and managed by her sons, Ed. Wertheimer and Lee Wertheimer, and her husband, Jacob Wertheimer.Ed. Wertheimer did most of the buying and ordering of the goods.

On the 4th day of April, 1895, attachment suits were filed in the Jefferson circuit court against E. Wertheimer by various creditors for amounts aggregating about $ 19,000.Her sons, Ed. and Lee Wertheimer, were among the attaching creditors for the sums of $ 3,206.05 and $ 4,709.27 respectively.The writs of attachment were delivered to the sheriff of Jefferson county on the same day, and levied upon the property of E. Wertheimer, including the mercantile stock.The liquor in question was attached as the property of E. Wertheimer, and, while the sheriff was holding it under these attachments, appellant replevied it from him, and thereby obtained possession of the liquor.Evidence was adduced tending to show that the statement made to the commercial agency was false.The verdict was for the appellee.The facts were controverted, and there was evidence to support the verdict on the questions of fact arising in the case.Was the jury properly instructed?

At the request of plaintiffthe court gave the following: "3.If the jury find from the evidence that E. Wertheimer, during the month of November, 1895, while knowing herself to be insolvent, made a false statement to the commercial agency, showing herself to be solvent, for the purpose of obtaining goods on a credit, and that the plaintiff, relying upon the truthfulness of said statement, contracted to sell her the liquor in controversy, the jury will find for the plaintiff."

And at the request of the defendantthe court instructed the jury as follows: "1.The court instructs the jury that although they believe that there may be some evidence in this case tending to show that the said E. Wertheimer was insolvent at the time of the purchase of the goods in controversy, this is not sufficient to show fraud in the sale of said goods; but before plaintiffs can recover they must show, by a preponderance of the testimony, that the said E. Wertheimer, at the time of the purchase of the goods, did not intend to pay for them."

"2.The court instructs the jury that no mere legal or constructive fraud shown from the evidence in this case will entitle the plaintiff to recover; but, before they can recover as against defendants, plaintiffs must show, by a preponderance of the evidence, a preconceived intention on the part of the vendee, E. Wertheimer, to get the goods for which the suit is brought without paying, for them.

"6.The jury are instructed that, although they may believe from the evidence that E. Wertheimer, at the time of the purchase of the goods in controversy in this suit, was insolvent, and knew herself to be so, and...