55 Ark. 642 | Ark. | 1892
after stating the facts as above reported.
The evidence was by no means full, explicit and complete,, but enough was shown to make it appear that the property claimed and recovered by Richardson & Co. in this action was conditionally sold by appellant to Faulks, and that the title to the same was reserved by the vendor until the purchase money was fully paid; that notes were taken for the purchase money and never paid; that subsequently Richardson & Co. took a mortgage on it to secure a debt that Faulks and Russell owed to them; and that after this appellant took possession of the property under the power retained in the notes previously given for the same, and thereafter resold it to Faulks and took the notes, which were read as evidence, for the purchase money, and retained the title to the property in itself until the notes were fully paid. According to this state of facts appellant became entitled to the possession of the property when Faulks failed to pay the notes at their maturity. But it is contended that appellant waived its right to the property when Adair advised and urged Richardson & Co. to take a mortgage on it to secure them. But there is no evidence of a waiver. Richardson testified that when the propriety of taking the mortgage was discussed, Adair took from his saddle-bags his note sheet and showed to him what was then due on the machinery. From this it appears that appellant was claiming all that was due it on the property, and relinquished nothing. The fact that Adair advised the taking of the mortgage was no waiver. Faulks had an interest he could mortgage. Dedman v. Earle, 52 Ark., 164. There was nothing in the taking of the mortgage inconsistent with the rights of the appellant. Both could co-exist. Richardson & Co. do not pretend to say that appellant led them to believe that the title to property was in Faulks, or that it waived any right in any manner, except by advising them to take the mortgage. This was the only fact, it seems, relied on by them to defeat a recovery by the appellant. No other evidence was adduced to show a waiver. This being true, there was no evidence to sustain the verdict.
The judgment of the circuit court is therefore reversed, and the cause is remanded for a new trial.