128 Ark. 600 | Ark. | 1917
(after stating the facts). Counsel for the plaintiff assigns as error the action of the court in giving instruction No. 1 at the request of the defendants. The instruction is as follows:
•‘1. You are instructed that although you should find from the testimony that L. B. Brackin was not in fact the agent of the plaintiff to sell the property sued for, yet, if you should further find from the evidence that the plaintiff permitted the said Brackin to hold possession of this property and other property of a similar character, and permitted him to hold and sell, from time to time, property of a similar character, and to hold same out for sale, to any one who should offer to purchase, and that the defendant purchased the property without knowledge of the contract between the plaintiff and Brackin, your verdict will be for the defendants.”
(1-2) The general rule is that no man can get a title to personal property from a person who himself has no title to it. There are, however, certain exceptions to the general rule. One of these exceptions is that a bona fide purchaser will be protected where the owner has conferred upon the seller the apparent right of property as owner or for disposal as his agent. Jetton v. Tobey, 62 Ark. 84. See, also, Andrews v. Cox, 42 Ark. 473, and case note to 25 L. R. A. (N. S.) 761 and 770. The question of whether Rogers, by his acts and conduct, so clothed Brackin with the indicia of ownership and the right to dispose of the rails that he was estopped from asserting his actual ownership against an innocent purchaser for value was submitted to the jury under proper instructions to which no objection has been urged by the plaintiff.
Counsel for the plaintiff insists, however, that instruction No. 1 went further than this, and in effect directed the jury to find for the defendants. In this contention we think counsel are correct. The instruction tells the jury that if Rogers permitted Brackin to hold possession of the steel rails and other property of a similar character, and permit him to hold and sell from time to time property of a similar character, that its verdict should be for the defendant. There was a conflict between the testimony of Rogers and of Brackin as to whether the former gave the latter the authority to take possession of and sell the steel rails in controversy. Rogers asserted that he did not give Brackin such authority, and Brackin on the other hand said that Rogers did give him such authority. It was proper that the jury should consider that during the same interval of time, Rogers did deliver to Brackin other property of a similar character to sell for him as tending to show that he gave such authority to Brackin as to the property in question; but it was wrong to instruct the jury that if Rogers permitted Brackin to hold property of similar character, and sell it for him, that its verdict should be for the defendants, for this would .invade the province of the jury. The question was whether Brackin did possess such authority, and that question can not be determined alone by what authority was given him in other cases in regard to similar property. Rogers being the owner of the property, could at his own pleasure give such authority in one case, and withhold it in another.
Again, it is urged that the judgment should be reversed because the court improperly admitted evidence of the first contract between Rogers and Brackin as to the machinery and other property at Cleora. Louisiana. We do not agree with counsel in this contention. In the first place it may be said that Rogers himself first testified as to the Louisiana contract, and introduced it in evidence. In the second place it was competent for the defendants to introduce it as tending to show the course of dealing between Rogers and Brackin, and tbns to show the apparent authority of Brackin to dispose of the property in question.
For the error in giving instruction No. 1 at the request of the defendants, the judgment will be reversed and the cause remanded for a new trial.
