130 P. 138 | Okla. | 1913
This is an action in replevin brought by C. H. Nickel, defendant in error, against C. A. Brochers, plaintiff in error, to recover a binder of the value of $10. There was judgment for plaintiff before the justice, and again on trial anew in the county court of Washita county, and defendant brings the case here.
The court did not err in refusing to instruct the jury at the close of the testimony, to return a verdict for defendant. The evidence discloses that, prior to the suit, one Fitzler had had a public sale in that county of certain of his personal property to *474 the highest bidder, the terms of which were that all sums of $10 or under owing by the successful bidder were to be paid in cash, and on all over that amount a credit of eight or ten months was to be extended, with interest, after the instrument evidencing the indebtedness became due; that, known to all concerned, defendant brought this binder there, to be sold with the other property under the terms of the sale; that, plaintiff being the highest bidder, the same was knocked down to him for $10, whereupon, his purchases exceeding that amount, pursuant to the terms of the sale, he executed and delivered to Fitzler a note and mortgage for that amount, payable to Fitzler, prepared for plaintiff's signature by the clerk of the sale, and then left for town a short distance away; that, although defendant demurred to accepting anything but cash for his binder, on the return of plaintiff that same evening, at the instance of defendant, a slight correction was made in the note in the hands of Fitzler, whereupon both plaintiff and defendant departed for their respective homes, leaving the binder at the place of sale, to be sent for by plaintiff: that on a subsequent day, upon Fitzler refusing to indorse the note to him, defendant repossessed himself of the binder, and, refusing to surrender same to plaintiff on demand, this suit was brought. Upon the execution and delivery by plaintiff to Fitzler of the note and mortgage, in compliance with the terms of the sale, title and right of possession to the binder passed to the purchaser.
Affirmed. *475