| Ark. | Jun 1, 1914
(after stating the facts). After setting aside the verdict, which was in favor of the appellant (plaintiff below), the court erred in entering judgment, notwithstanding the verdict, in favor of the appellee. There is nothing on the face of the pleadings to warrant the court in rendering a judgment in appellee’s favor.
The appellant, who was the plaintiff below, claimed the property by an alleged sale and transfer of the same to it by Lyman, which it set up in its complaint, and in its reply denied the allegations of the appellee’s answer which challenged the appellant’s alleged right and title to the property. It could not be said, therefore, that the appellee was entitled to have judgment entered in his favor under section 6244 of Kirby’s Digest, which provides that, “AWiere, upon the statement in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so entered by the court, though a verdict has been found against such party.”
The ruling of the trial court, however, in .not entering a judgment in accordance with the verdict and in setting aside the verdict, was tantamount to reserving the cause for future consideration under the provision of section 6242 of Kirby’s Digest. We need not determine whether the court, under the latter section, would be authorized to enter a judgment non obstante veredicto, for if there could be any warrant for such a judgment, not based solely upon matters appearing in the pleadings or as disclosed by the record proper, the testimony justifying such verdict would have to be undisputed so that the court might declare as matter of law that the party in whose favor the judgment was entered was entitled to it, notwithstanding the verdict in favor of the other party.
Therefore, without deciding whether a judgment non obstante veredicto could be entered upon undisputed evidence, it suffices to say that the evidence developed at the trial in this cause is not uncontradicted and did not justify the court in declaring as a matter of law that the appellee was entitled to recover. Without entering into detail in discussing the evidence, we are of the opinion that it was a question for the jury to determine as to whether or not Lyman was insolvent at the time of the alleged transfer of the goods in controversy to appellant, and as to whether or not appellant knew or had notice of such facts as to put it upon inquiry which would have discovered the insolvency of Lyman, if he was insolvent. The court, having set aside the verdict, instead of entering judgment for the appellee, should have sent the cause to the jury to again pass upon the issues of fact involved, that is, as to whether or not there had been a completed sale of the property between.Lyman and appellant by any agreement to that effect and a delivery of the goods in controversy, and as to whether or not Lyman was insolvent, and whether 'appellant knew,' or had notice of such facts as to make it chargeable with knowledge, of Lyman’s insolvency, if he was insolvent.
In view of another trial it is proper to say that the instruction in regard to the delivery was erroneous. The court should not have assumed that the facts recited in the instruction on the question of delivery constituted a delivery, but should have told the jury to consider these facts in determining whether or not there was a delivery of the property. As to whether or not there had been a contract of sale and a delivery so as to render the sale complete was a question of intention between appellant and Lyman and the jury should have been directed to determine from the evidence as to whether or not it was the intention of the parties to make the sale and whether or not they did complete it by a delivery of the goods in controversy. Elgin v. Barker, 106 Ark. 482" date_filed="1913-02-03" court="Ark." case_name="Elgin v. Barker">106 Ark. 482.
For the error in entering a judgment in favor of the appellee the judgment is reversed and the cause remanded for a new trial.