152 Ark. 540 | Ark. | 1922
(after stating the facts). The court submitted to the jury the issue of fact between the plaintiffs and the defendant, Bridgeman, as to the ownership of the logs. The jury returned a verdict for the plaintiffs, and, no appeal having been taken from the judgment rendered, the issue of ownership of the logs as between the plaintiffs and Bridgeman is not involved in this appeal.
Counsel for Brown & Hackney, Inc., assign as error the refusal of the court to give instructions number 2 and 5, which are as follows:
“2. The jury are instructed that if the plaintiffs, or either of them, knew of the sale of said logs made by Bridgeman to Brown & Hackney, Inc., and accepted the payments made by them, then they would be held to have ratified said sale, and your verdict will be for the interveners for the value of logs in controversy.”
“5. The jury are instructed that if you find from the testimony in this case that the defendant, Bridgeman, notified plaintiffs, or either of them, that he had sold logs from the land in controversy to the Brown & Hackney Company, and that he had received $1,000 in payment of same, and that he turned this money over to said plaintiff, then this would be a ratification of said sale, and said plaintiff would be estopped from claiming said logs. ’ ’
There was no error in refusing to give these instructions. It will be noted that instruction number two tells the jury as a matter of law that Brown & Hackney, Inc., are entitled to recover the value of the logs if it should find that plaintiffs ratified the sale. This was, error. According to the testimony of Bridgeman, about 23,000 feet of logs in controversy were never delivered to Brown <§s Hackney, Inc. It is true he made a verbal agreement to sell that company 52,000 feet of logs, but it is fairly inferable from his testimony that the logs were to be paid for as delivered to it. Bridge-man delivered to Brown & Hackney, Inc., 30,000 feet of logs, and it paid him for that amount. He testified that the balance would be paid when the logs should be delivered. The balance of the logs were taken from Bridge-man in the replevin suit before they were delivered to Brown & Hackney, Inc. Bridgeman states positively that these logs were never delivered to Brown & Hackney, Inc. Hence the court would have erred in telling the jury that the interveners were entitled to recover the value of the logs if the jury should find that the plaintiffs had ratified the sale of the logs by Bridgeman to them.
If the plaintiffs themselves had made a contract direct with Brown & Hackney, Inc., to sell it 52,000 feet of logs at $40 per thousand, payment to be made as the logs were delivered, and after delivering 30,000 feet of the logs, had refused to deliver the balance, Brown & Hackney, Inc., could not have recovered the logs or their value from the plaintiffs. Replevin cannot be maintained without showing a general or special ownership of the property in the plaintiff, together with the right of immediate possession. A delivery, either' actual or constructive, is essential to the consummation of a sale of chattels, and the title does not pass until there has been a delivery. Hodges v. Nall, 66 Ark. 135; Deutsch v. Dunham, 72 Ark. 141; Georgia Marble Finishing Works v. Minor, 128 Ark. 124, and Sherrill Hardwood Lbr. Co. v. H. D. Glass Lbr. Co., 151 Ark. 513.
As we have already seen, Bridgeman testified that the logs in question had never1 been delivered to Brown & Hackney, Inc., and this raised an issue of fact to be submitted to the jury on the question of whether the title to the logs had passed to Brown & Hackney, Inc., under its executory contract of purchase entered into with Bridgeman. It would have been error for the court to have told the jury as a matter of law that the intervener could recover the value of the logs in controversy, or that the plaintiffs would be estopped from claiming the logs if they had never in fact been delivered to Brown & Hackney, Inc. In case there was no delivery so as to consummate the sale, the remedy of Brown & Hackney, Inc., would have been a suit to recover damages on account of the breach of its contract, and it could not maintain a suit for the conversion of the property or the possession of it. The distinction between a sale which transfers the ownership and an executory contract to sell, not consummated by delivery, which gives but an action for the breach of it, is a broad one and must not be confused.
It is also insisted that the court erred in refusing to grant Brown & Hackney, Inc., a continuance in the cause. The ground upon which this assignment of error is predicated is that the plaintiffs were permitted to amend their complaint at the beginning of the trial so as to ask damages against Brown & Hackney, Inc., for $400. This assignment of error is not well taken, for two reasons. In the first place, no judgment was rendered against Brown & Hackney, Inc., for damages, and we cannot see how any prejudice could have resulted to it in the premises. Ag’ain, it is not possible for us to say that there was error in refusing to grant the continuance on the ground of surprise without counsel had set out the particular respect in which they were surprised. We cannot take the word of a party that surprise.would result, but he should show to us, in substance at least, in what the surprise consisted, before we can convict the court below of error. It was not done so here, and the refusal to grant the motion for a continuance in this form was not error. The new issue in fact only related to the number of logs which had been cut and stacked at Worden’s spur; and no new or additional testimony was necessary.
We find no reversible error in the record, and the judgment will be affirmed.
