White v. McCracken

60 Ark. 613 | Ark. | 1895

RIDDIcK, J.,

1. Whe~i constructive delivery sumcient. (after stating the facts.) We find no error in the instructions given by the court. They say, in effect, that if the logs sold were so large as to be incapable of manual delivery, then, if the purchase price was paid in full, a bill of sale delivered, and the possession surrendered by the vendor, and he afterwards held them in good faith as the bailee of the purchaser, then no further delivery was required to pass the title. The law, so far as it is stated in these instructions, is not prejudicial to the rights of appellants. Trieber v. Andrews, 31 Ark. 163; Puckett v. Reed, 31 Ark. 131; Shaul v. Harrington, 54 Ark. 307; Hight v. Harris, 56 Ark. 98.

2. Waiver of agreement as to place of delivery. Neither do we think that the court erred in refusing to give instructions asked by appellants. The first of these instructions was to the effect that if McCracken entered into a contract with Bari-inni, by which Barnum agreed to furnish and deliver to McCracken certain timber at the mouth of I~ittle Red river, the title would not pass until the timber was delivered at such place. This instruction was calculated to mislead the jury, for Mc-Cracken did not rely for title upon the first contract referred to in this instruction. He claimed that Barnum had, after this contract was made, sold and delivered him the timber at a place different from that named in the first contract. When one person contracts with another to buy from him timber or other personal property to be thereafter delivered at a certain place, such property may, if it suits the convenience of the parties, be delivered and accepted at a place different from that named in the contract. The seller could not compel the buyer to receive it at such place, but if he does receive it, no one else can complain because it was not delivered at the place named in the contract.

3. Requirements in bill of sale. The fourth instruction asked by appellants was to the effect that, to constitute a deliverv, the plaintiff “ should not only take complete and absolute control, but that the property must be specifically described in the bill of sale, etc. When the property is turned over to the buyer, and the buyer takes absolute control of it under the sale, it is not essential that there should be a bill of sale, much less that the property should be specifically described therein.

The seventh and eighth instructions asked by appellants rested upon the doctrine of estoppel, which we think does not apply in this case, and were properly refused. The statement of McCracken to one of the parties, and his answer in the garnishment proceeding, appear to a certain extent inconsistent with his claim of ownership of the timber. • It was therefore proper for the jury to consider them, but the statements were not made under such circumstances or acted upon to such extent as to create an estoppel.

It was not error in the court to refuse to modify instruction number three by adding thereto the words “if not otherwise fraudulent.” That instruction stated to the jury that if the timber had been fully paid for by McCracken before' the levy of the execution, and Barnum held possession of same as bailee of plaintiff in good faith, then they should find for plaintiff. The modification would have added nothing to the meaning of the instruction, for if the timber had been fully paid for, and the transfer made in good faith, it could not have been “otherwise fraudulent.”

If the appellants desired the court to instruct the jury that if the sale to McCracken was not in good faith, but only a sham or pretended sale made to protect the property of Barnum from his creditors, it would then be of no validity, they should have requested an instruction to that effect.

\ 4-sto. omissions in court’s charge, While we do not think there was any reversible error committed by the court, for fear of misapprehension we will say that we do not consider the charge of the court in this case entirely satisfactory. As applied to the facts of this case, it is not, in our opinion, erroneous or misleading, but it is to a certain extent incomplete. The defect arises from the practice which trial judges sometimes adopt of composing their charge to the jury altogether of selections from the instructions, or requests to charge, furnished by the different counsel in the case. This practice was condemned in Davis v. Railway, 53 Ark. 129. It necessarily leads to a charge lacking in that completeness, clearness and uniformity calculated to assist the jury in understanding the issues that they are to determine.

A charge to a jury should rarely begin with a statement of an abstract principle of law. The first paragraph of the charge should state the nature of the case, and define, as clearly as possible, to the jury the issues which they are called upon to determine. While, under our laws, a judge cannot charge the jury as to the facts or weight of evidence, he yet may, and it is his duty to, define to them the issues which they are to determine. And it will be found that a clear statement of the issues of fact which the jury are to decide will frequently obviate the necessity of long instructions regarding the law of the case. But if the instructions were somewhat incomplete, none of the instructions asked by appellants tended to remedy this defect, and it was said by this court, in Fordyce v. Jackson, that “it is the settled practice in this State that a party cannot avail himself of an omission which he made no effort to have supplied in the trial court.” 56 Ark. 602.

The instructions given, so far as they went, were not erroneous or misleading, and the evidence is sufficient to support the verdict of the jury. The judgment is therefore affirmed.