103 Ark. 414 | Ark. | 1912
(after stating the facts). There is no testimony in the record to warrant the conclusion that appellee, Curry, estopped himself from setting up his right to the possession of the automobile under his contract with Hughes after the latter had failed to pay the purchase money. The automobile was sold to Hughes, and the title was to pass on condition that he made the payments as specified in the notes, and on his failure to make such payments the title to the automobile did not pass out of the appellee.
Giving the testimony of the appellants its strongest probative force, it only tends to show that appellee knew at the time he sold the car to Hughes that the latter would use the car as one of the prizes in what is termed his “popularity contest” to promote the circulation of the Democrat News; but there is no testimony whatever to warrant the finding that' appellee at the sale participated in the purpose of Hughes and sold the car for the purpose of having the same advertised as one of the prizes to be given away in the contest.
Therefore, conceding that the “popularity contest” scheme was a lottery, and within the rule of the evil denounced in Burks v. Harris, 91 Ark. 205, still appellee would be entitled to recover in this case, because the lottery or gaming transaction had no connection with the sale. The sale was not made for the purpose of promoting such transaction. The consideration for the sale of the automobile was entirely independent of any illegal use to which the automobile may have been applied after the contract of sale was entered into.
“An obligation will be enforced, although indirectly connected with an illegal transaction, if it is supported by an independent consideration, so that the plaintiff does not re quire the aid of the illegal transaction to make out the case. Armstrong v. American Exchange Bank, 133 U. S. 469, quoted in Ashford v. Mace, ante, p. 114. See also Peay v. Pulaski County, post, p. 601; Wood v. Stewart, 81 Ark. 41.
The court, in one of its instructions, told the jury that the appellee was entitled to recover under his contract if the car had not been paid for, provided he had not waived his title to said car. This submitted to the jury the question whether or not the conduct of Curry, in connection with the sale of the automobile, was a waiver of his title and right to the possession of, the car. The instruction was really more favorable to the appellants than they were entitled to under the undisputed evidence.
The court did not err in refusing the prayer of appellants for instruction. This instruction virtually assumed that th ere had been a completed sale of the automobile to Hughes. As the undisputed written contract showed that there had been no perfected sale, the instruction was abstract. Furthermore, by granting the prayer the court would have told the jury that consent of the appellee for the automobile to be used in the popularity contest after the sale would have defeated his recovery. That is not the law.
The evidence shows that the appellee expected that the notes would be paid long before the popularity contest was advertised to close. True, he had extended the time for payment at the urgent request of Hughes more than once, but under the very last extension of payment the notes were due five. days before the popularity contest was advertised to close. Under these circumstances, it can not be said that appellee consented to relinquish his right to the title and possession reserved in the notes by consenting that the automobile should be used in the prize contest.
The instructions correctly presented the law applicable to the facts, and the verdict is sustained by the evidence. The judgment is therefore affirmed.
