136 Ark. 33 | Ark. | 1918
(after stating the facts). It is the contention of counsel for the plaintiff that this case is governed by the principles of law decided in Townes & Sturdivant v. Edward Holland & Co. (Miss.), 77 Sb. 525. In that case the court held, that whether a sale of cotton on the seller’s gin platform was with the understanding that delivery was then complete, so that the cotton was thereafter at the buyer’s risk was under the evidence a question for the jury, although the seller was to ship and draw a draft with bill of- lading attached. There, as here, it was shown that it was the custom for the seller to draw a draft with the bill of lading atached for the purchase price of the cotton, and the court held that this custom did not necessarily carry with it the idea, that the sale was not completed until this was done. The court said that the real question was what was the understanding of the parties to the transaction, and that, viewing the contract from the standpoint of the sellers, the court could not say as a matter of law that the sale was not complete because the cotton had not been delivered to the carrier. The facts in that case were very similar to the facts in the present case. There at the conclusion of the evidence the court at the request of the buyers gave a peremptory instruction to the jury to return a verdict in their favor. On that account the . judgment was reversed because the jury might have found under the facts that the sale of the cotton was completed and that the only thing left undone was the payment of the agreed price.
In the present case the court did not direct a verdict for the defendant. On the other hand the case was tried before the court sitting as a jury, and the court made a general finding both of law and fact in favor of the defendant. It is well settled in this State that the finding of a court sitting as a jury is as binding upon appeal as the verdict of a jury. So under the principles of law above announced a finding of the court in favor of either party would not be disturbed on appeal. Under the evidence -the'court would have been warranted in finding that the sale was completed. On the other hand, the court was equally warranted under the evidence in finding that the sale was not completed because the cotton had not been delivered upon the railroad platform at the depot and a bill of lading with draft attached issued therefor, and this was what the court did find.
There being evidence of a substantial character to support the finding of the court, the judgment must be affirmed.