White v. McCracken

• Decision Date: 11 May 1895
• Citation: 31 S.W. 882,60 Ark. 613
• Parties: WHITE v. MCCRACKEN
• Court: Arkansas Supreme Court

31 S.W. 882

60 Ark. 613

WHITE v. MCCRACKEN

Supreme Court of Arkansas

May 11, 1895

Appeal from White Circuit Court, GRANT GREEN, JR., Judge.

STATEMENT BY THE COURT.

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 as 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 forty dollars 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 not be reserved to secure purchase money. No such re-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 as refused, and exceptions noted.

There was a motion for new trial, which was overruled, and the defendants appealed.

Judgment affirmed.

Ashley Cockrill, for appellant.

1. The delivery, of a bill of sale, for a valuable consideration, with no actual or symbolical delivery of the chattel, other than is to be inferred from the bill of sale, is not sufficient against a creditor of the vendor. 127 Mass. 381; 6 Wharton (Pa.), 53; 132 Mass. 232; 4 Gray, 307; 47 Ark. 210.

2. Mere words alone cannot constitute the seller a bailee of the buyer, so as to take the contract out of the statute of frauds. 1 N.Y. 301; 22 Mo. 354; 22 Cal. 103; 49 Ga. 143; 38 N.J. 536, 551; 54 Ark. 305.

3. It was error to refuse the 1st and 4th instructions asked for defendants. 47 Ark. 210; 54 id. 305.

4. Appellee was estopped. Bigelow on Estoppel, p. 699; 57 Ark. 638; 33 Ark. 465; 53 id. 196; 45 id. 37; 39 id. 131; 38 id. 571; 36 id. 96; 3 Hill, 215; 6 Lea (Tenn.), 289; Bigelow on Estop. pp. 555, 712, 610, 710; 122 U.S. 241.

S. Brundidge, Jr., for appellee.

1. The only possession appellee could take of the logs and timber was the control and management of same, and this he did take, which is sufficient. 31 Ark. 163; Ib. 131. The transfer was affected by the delivery of the bill of sale, and possession taken soon afterwards, which completed the sale. 108 Mass. 351; 114 id. 116; 26 Am. Dec. 626; 11 id. 360; 56 Ark. 93.

2. There is no showing made that Henson was misled or prejudiced by anything said or done by appellee, and there is no estoppel. 54 Ark. 499; 53 id. 196.

3. The instructions properly declare the law. 47 Ark. 210 is not applicable to this case.

OPINION

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 the bailee of the purchaser, then no further delivery was required to pass the title. The law, so far as it is stated in these instructions, is not prejudicial to the rights of appellants. Trieber v. Andrews, 31 Ark. 163; Puckett v. Reed, 31 Ark. 131; Shaul v. Harrington, 54 Ark. 305, 15 S.W. 835; Hight v. Harris, 56 Ark. 98, 19 S.W. 235.

Neither do we think that the court erred in refusing to give instructions asked by appellants. The first of these instructions was to the effect that if McCracken entered into a contract with Barnum, by which Barnum agreed to furnish and deliver to McCracken certain timber at the mouth of Little Red river, the title would not pass until the timber was delivered at such place. This instruction was calculated to mislead the jury, for McCracken did not rely for title upon the first contract referred to in this instruction. He claimed that Barnum had, after this contract was made, sold and delivered him the timber at a place different from that named in the first contract. When one person contracts with...