74 Ark. 557 | Ark. | 1905
The .instructions fairly presented the issues covered by the evidence. The court did not err in refusing instruction No. 3 offered by the plaintiff. The proof shows that the contract for the sale of the mare, whatever its terms might have been, was made with Ike Davis. The proof also shows that George Davis was sent by his father to get the mare. He was a mere lad. His only mission, as the proof shows, was to go to plaintiff’s house for the animal and to take her to Ike Davis. The boy was a special agent of his father for this particular purpose only, and he had no authority, real or apparent, to change the terms of the contract between his father and the plaintiff as to the sale of the mare. The instruction as offered ignored the evidence and the principle of law that one who deals with a special agent is bound to ascertain the nature and extent of his authority. Mechem on Agency, § 289; City El. St. Ry. Co. v. Exch. Nat. Bank, 62 Ark. 33; Berry v. Barnes, 23 Ark. 411.
Instruction No. 3j4 was more favor’able to appellant than the facts and the law warranted. As we have seen, George Davis, the special agent, had no authority to alter in any manner the contract that had been made between plaintiff and his father. Appellant either reserved title to himself under the proof when the contract was made with Ike Davis, or he did not. But if he did not do so, then he could not do so afterwards with one without authority, real or apparent, to assent to such a condition. To have bound Ike Davis by estoppel on the ground of acquiescence in or ratification of such condition, it was not enough simply for his son George to have heard and understood, but knowledge on the part of Ike Davis himself would have been essential. So the instruction was not correct; but appellant cannot complain of the error, for it was in his favor. Moreover the objection to the giving of “request No. 3^4” is not reserved in motion for new trial. What we have already said shows that .the court did not err in refusing appellant’s request for instruction No. 6.
No instructions were asked upon the question of innocent purchaser, and appellant will not be permitted to complain here of errors not mentioned in the court below. The answer set up that appellee was an innocent purchaser. The burden of proof was on appellant in the whole case. There was evidence showing that appellee “had traded for the mare,” while she was in the possession of Ike Davis, and that appellee obtained lawful possession of her without any notice of appellant’t claim. If appellant desired, therefore, to claim that appellee was not an innocent purchaser, it should have presented the question to the trial court.
The real question at issue, as it appears to us from the record, was whether appellant, when he sold the mare in controversy to Ike Davis, reserved the title in himself until the consideration named was duly performed. This was a question of fact purely upon conflicting evidence, and was fairly submitted to the jury for decision. The judgment is therefore affirmed,
