| Ark. | Jul 12, 1909
(after stating the facts.) 1. There was evidence to sustain the verdict.
2. It will be observed that the note sued on contained the stipulation “that the title, ownership and possession does not pass from the Nashville Lumber Company’s Store until this note and interest is paid in full, and the Nashville Lumber Company Store has the power to declare this' note due and take possession of the above property whenever they deem themselves insecure,” etc.
The appellant does not sue for the property, but for the purchase money. The only defense was that appellant had elected before the institution of the suit to retake the property. The question of satisfaction of the note was not raised by the answer. The legal effect of the facts set up in the answer, if such facts were proved, was to show an election on the part of the appellant. Appellees introduced evidence tending to prove the allegations of its answer, and the court submitted the question to the jury under proper instructions. Appellant’s prayer number one incorrectly states the defense set up by appellees. For it says: “Robinson claims that all of said property was returned to the plaintiff, and was accepted by it in satisfaction of said notes.” The words “in satisfaction of said notes” were not used in the answer, and none of its allegations would warrant the conclusion that appellee Robinson was setting up the defense of payment or satisfaction based upon a contractual relation between appellant and appellees. But the allegations of the answer and the evidence adduced by the appellees shows that their defense was a cancellation of the debt by the election on the part of appellant "to retake the property. The words “in satisfaction of the notes” introduced an issue not in the case, and were well calculated to confuse and mislead the jury. For, if the appellant elected to retake the property, and thus in effect to cancel the debt before this suit was brought, then it could not thereafter sue to recover the purchase money also. When this debt became due and was unpaid, the vendor, having reserved the title until the purchase price was paid, had its election to take either of two courses. It could elect to retake the property, and thus in effect cancel the debt, or it could bring its action to recover the debt, and thus affirm the sale and waive reservation of title. Butler v. Dodson, 78 Ark. 569" date_filed="1906-04-30" court="Ark." case_name="Butler v. Dodson">78 Ark. 569. But appellant, having taken the former course, as appellees allege, could not thereafter pursue the latter, and hence is barred of the right to recover in the present suit.
The judgment is affirmed.