Liveoak v. Hopper

Hart, J., (after stating the facts). It is earnestly insisted by counsel for the plaintiff that the circuit court erred in directing a verdict in favor of the defendant. It is a well settled rule of law that, when the same chattel is sold to two persons, he who first • lawfully acquires the possession will hold it against the other. The plaintiff claims under the bill of sale executed to him by Shields on the 20th day of January, 1925, and the defendant claims under a verbal purchase from Shields on the preceding day. It has been uniformly held by this court that delivery is a question of intention of the parties, as manifested by overt acts, and that a sale of chattels will be treated as complete where any act has been done which was intended by the parties as a delivery. Elgin v. Barker, 106 Ark. 482, 153 S. W. 598; Hodges Bros. v. Bank of Cove, 119 Ark. 215, 177 S. W. 925; and Nance v. Bell, 153 Ark. 229, 240 S. W. 8. In the case at bar it was established by the testimony of the defendant and by that of two disinterested witnesses that the Ford car, which was in the garage of one of the witnesses, was turned over by Shields to the defendant, and that the owner of the garage agreed to hold the car for the defendant and to charge the repairs on it to him. This constituted an actual délivery of the ear. It was the only delivery of the car which could be made under the circumstances. The delivery was made and sale consummated on the 19th day of January, 1925, which was the day before that on which the plaintiff claimed to have purchased the car. Thus it will he seen that the undisputed facts show that the defendant bought the car and acquired the open and exclusive possession of it before the plaintiff claims to have acquired any title to it. Again, the general rule is that, where the property, at the time of the sale, is in the possession of a third person, and he is notified of the sale, and agrees to keep it for the vendee, his possession henceforth becomes the possession of the vendee. 35 Cyc. 193. In Field v. Simco, 7 Ark. 269, there was a complete oral contract of sale of chattels in the hands of a bailee who was notified of the sale. The property was seized by a creditor of the seller after the notice to the bailee but before there was any attempt by the purchaser to remove it. It was held that the bailee’s possession became that of the purchaser, and satisfied the law as against the creditor. It follows that the judgment must be affirmed.