| Ark. | Apr 16, 1892
On the 29th day of September, 1890, one Largent went to the residence of the appellee, and proposed to sell him a mule colt. They agreed upon the price, and that the mule should be paid for on delivery. On the next day, Largent went to the town of Fayetteville, riding a mare which the mule followed. He offered the mule for sale to the appellant, who paid him the price they agreed upon, and it was agreed that Largent should deliver the mule to appellant on the 15th of the following month at Fayetteville. Largent left appellant’s house, riding the mare, the mule colt following. Late in the afternoon of the same day, which was the 30th of September, Largent rode up to the house of appellee, sold him the mule for forty-five dollars, received the money, and went on.
Appellant sued to recover possession of the mule. The court sitting as a jury found the facts and declared the law for the appellee, and gave judgment accordingly, from which this appeal was taken.
If it was a part of the original agreement and understanding between Hight and Largent that the mule was not to be delivered till the 15th of October, the title to it did not pass so as to protect the vendee against a subsequent innocent purchaser from Largent. But if, at the time of contract between Largent and the appellant, it was understood between them that the mule was then delivered and by the appellant permitted to remain in the possession of Largent as his bailee, to be returned to him on the 15th of October, this was a legal delivery, though there was no actual change of possession, and the title to the mule vested in the appellant. Legal delivery, and not a visible change of possession, is all that is demanded to protect the vendee’s title. Shaul v. Harrington, 54 Ark. 307. There was no proof of any fraud in the case.
Under our decisions, the retention of possession by the vendor of personal property after sale is not a conclusive presumption of fraud. Whether there was a delivery, within Shaul v. Harrington, was a question of fact. We cannot say there was not evidence to warrant the finding of the court.
The judgment is affirmed.