White v. McCracken

• Decision Date: 11 May 1895
• Citation: 31 S.W. 882
• Parties: WHITE et al. v. McCRACKEN.
• Court: Arkansas Supreme Court

Page 882

31 S.W. 882

WHITE et al. v. McCRACKEN.

Supreme Court of Arkansas.

May 11, 1895.

Appeal from circuit court, White county; Grant Green, Jr., Judge.

Action by Joseph McCracken against S. H. White, a constable, and W. P. Best, a town marshal, for property seized under executions. From a judgment for plaintiff, defendants appeal. Affirmed.

S. H. White, a constable, and W. P. Best, a town marshal, of Judsonia, levied executions upon certain logs as the property of B. D. Barnum. Joseph McCracken brought this action of replevin to recover possession of the logs, claiming to have purchased the same from said Barnum before the issuance of said executions. He testified that in July, 1892, he made a contract with Barnum, by which Barnum agreed to get out and deliver to him, at the mouth of Little Red river, a certain quantity of oak, gum, and ash logs, for a certain price per cubic foot. A portion of the purchase price was to be advanced to Barnum at the work progressed, and the remainder was to be paid on delivery. About the 1st of January, 1893, finding that he had paid Barnum the full value of the logs, he took a bill of sale for the same. Afterwards, on the 22d of January, 1893, he went to the yard where the logs were lying, in Cleburne county, and Barnum delivered to him the logs in controversy, for which he had paid him in full. He further testified that this sale and delivery took place before the issuance and levy of the executions under which White and Best claim the property; that he then hired Barnum, and agreed to pay him $40 per month to assist in rafting the logs to New Orleans; that afterwards Barnum had no further interest in the logs, and was only in possession of them as his agent and bailee. The testimony of Barnum and other witnesses for plaintiff corroborated the testimony of McCracken. The evidence on the part of defendants consisted mainly of certain statements made by McCracken to certain of the witnesses, and of statements contained in his answer to a garnishment proceeding. These statements of McCracken proved by the defendant were, to a certain extent, inconsistent with his testimony that the logs in question had been sold and delivered to him. The plaintiff asked the following instructions, which were given by the court, over the objections of defendants: "(1) The jury are instructed that when personal property, from its character and situation, is incapable of actual delivery, the delivery of a bill of sale for the same, or other evidence of title, is sufficient to transfer the title and the possession to the vendee. (2) The jury are instructed that delivery of personal property may be either actual, or by construction, when, from the nature or situation of the property, actual delivery is impracticable, and when there is such a delivery the sale will be complete, and the title pass to the purchaser. (3) The jury are instructed that if you find from the evidence that the plaintiff, McCracken, had, before the levy of the execution in this cause, paid to B. D. Barnum the full value of the timber under the contract with him, and the said Barnum was in good faith in possession of the same, as the bailee of the plaintiff, then you will find for the plaintiff." In addition to above instructions, the court gave the following at the request of the defendants: "(2) The jury are further instructed that if they find the timber in controversy is so large, and, of its nature, incapable of actual delivery, then, to pass the title, there must be something done equivalent to it. The donor must not only part with the possession, but with the dominion of it." The defendants also asked the court to give four other instructions, which were refused. They also asked the court to modify instruction No. 3 by adding thereto the words, "if it is not otherwise fraudulent," which request was refused, and exceptions noted. There was a motion for new trial, which was overruled, and the defendants appealed.

Ashley Cockrill, for appellants. S. Brundidge, Jr., for appellee.

RIDDICK, J. (after stating the facts).

We find no error in the instructions given by the court. They say, in effect, that, if the logs sold were so large as to be incapable of manual delivery, then, if the purchase price was paid in full, a bill of sale delivered, and the possession surrendered by the vendor, and he afterwards held them in good faith, as...