Cincinnati Safe Co. v. Kelly

16 S.W. 263, 54 Ark. 476, 1891 Ark. LEXIS 84

• Court: Supreme Court of Arkansas
• Decided: May 9, 1891
• Status: Published

Opinions

Hughes, J.

This is an appeal from a judgment in replevin for the return of an iron safe, or its value $225, which the appellant sold and shipped to the appellee, Kelly, at Brinkley, Arkansas, upon the express condition in the written contract of sale that the title thereto should not pass until said safe was paid for in full, and that the same should remain the property of the appellant until that time. By the terms of the written contract the appellee agreed to pay for said safe two hundred and twenty-five dollars to the order of appellant, as follows: Cash on arrival one hundred and twenty-five dollars, together with the old safe of appellee at depot at Brinkley, Arkansas, valued at one hundred dollars. The new safe was to be delivered on board of cars at Cincinnati, Ohio.

When the new safe arrived at Brinkley, the appellee refused to receive it and pay the one hundred and twenty-five dollars in money and to deliver the old safe ; whereupon the appellant sued appellee and recovered judgment in the circuit court, at its September term, 1888, for the one hundred and twenty-five dollars and costs, against the appellee, Kelly, which judgment he paid. The appellant then sued the railroad company and recovered judgment in replevin by default for the new safe, and upon appeal from this judgment, rendered by a justice of the peace, Kelly was, upon his motion, made a defendant in the circuit court, where he recovered judgment for the return of the new safe, or its value, two hundred and twenty-five dollars. The appeal pending here is from the latter judgment.

The cause was tried before the couit without a jury, upon an agreed state of facts, from which it appears that the new safe was shipped to Kelly by appellant on December 5, 1887; that appellees, by their attorney, N. W. Norton, on the 26th November, 1888, at the appellee Kelly’s place of business, in the town of Brinkley, urged appellee Kelly to put the old safe referred to in the contract on the depot platform in Brinkley; that .Kelly afterwards applied to the railroad agent for permission to place said old safe on the depot platform, which the agent declined to permit unless Kelly would place the safe there for shipment, which Kelly could not do, because he had no shipping instructions. When this occurred, is not shown. It does not appear that Kelly ever tendered the old safe to the appellant, or that he even notified it that he was read}7 to ship it or deliver it, or that he asked any instructions from the appellant in regard to what he should do with it. There were no declarations of law at the trial other than a general declaration that the law was for the appellee, as we infer from the bill of exceptions. The appellant excepted, filed a motion for a new trial, which was overruled, and appealed.

“ Where a chattel is sold with a reservation of title in the vendor until the price is paid, the title remains in him until the condition is performed.” McIntosh v. Hill, 47 Ark., 363 ; McRea v. Merrifield, 48 Ark., 160; Simpson v. Shackleford, 49 Ark., 63.

Forfeiting under condi tional sale. It does not appear from the agreed statement of facts or otherwise that the appellant waived its right in the premises in any respect at any time. Appellant brought suit to recover the new safe on December 27, 1888, a month after his attorney had urged appellee to deliver the old safe on the depot platform at Brinkley, and in the meantime he did not notify the appellant or his attorney that he was prepared and ready to deliver it, or that he had asked permission to place it on the platform at the railroad depot and been refused by the railroad agent. We think he was clearly in default, and that, upon the facts presented in the bill of exceptions, judgment should have been rendered for appellant.

The judgment is reversed and remanded for new trial.

Battle and Hemingway, JJ., concur.