Whitelaw Furniture Co. v. Boon

52 S.W. 155, 102 Tenn. 719

• Court: Tennessee Supreme Court
• Decided: May 27, 1899
• Status: Published

Opinion

Beard, J.

The Circuit Judge in this case charged the jury that where a vendor in a conditional sale has reclaimed property from his vendee, because of the failure of the latter to pay the full purchase money as provided in the contract of such sale, and is afterwards sued by the vendee for that part of the purchase money paid before reclamation, that the burden of proving a compliance with the requirements of Sec. 4, Ch. 81, of the Acts of 1889 (§ 3669 of Shannon’s Code), was upon the defendant. Upon regaining possession of property so sold, the statutory duty of within ten days thereafter advertising the same for sale in the manner prescribed by the Act, is imperative, and a failure to discharge this duty in any important particular makes the vendor so reclaiming liable to the original purchaser for the part of the consideration theretofore paid. Whether he has complied with the provisions of the statute in making this sale .is peculiarly within the knowledge of the original vendor. He knows better than any one when and where he posted the notices announcing the sale, and whether it occurred at the time and place designated in the notices, and in placing this burden on him the Court only applies the rule uniformly adopted in cases where defendants are prosecuted for selling liquor without license. In such cases, that the defendant has a license is a fact lying particularly within his own knowledge, and as proof of it can easily be made by him, the duty of furnishing' it is imposed upon him, rather than proof of the negative upon the prosecutor. Farrell v. State, 32 Ala., 557; Williams v. State, 35 Ark., 430; Conyers v. State, 50 Ga., 103; Nocker v. Peoples, 91 Ill., 468; State v. Miller, 53 Iowa, 84.

There was no error in the action of the trial Judge and his judgment is affirmed.