Hodges v. Nall

Hughes, J., (after stating the facts.) The evidence in the case tended to show either that the cows were delivered to the appellee at the time of the trade, and were never after-wards in the possession of the appellant, or that the appellant had only agreed to deliver them, but did not. It follows that if the cows were delivei’ed to the appellee, and were not after-wards in the possession of the appellant, replevin would not lie against the appellant. If appellant agreed to deliver the cows, but never did so, the sale was hot complete for want of delivery of the property sold; and in this event replevin would not lie against the appellant, though he might be liable on his contract for failure to deliver the property. It follows that the circuit court erred in refusing to give instructions asked by defendant and numbered 1, 2, 4, 6 and 7, and in modifying instructions No. 3 and giving it as modified, and in not giving it as asked. See Jones v. Pearce, 25 Ark. 545; Shaul v. Harrington, 54 Ark. 307; Hight v. Harris, 56 Ark. 98; Wallace v. Brown, 17 Ark. 449; Hill v. Fellows, 25 Ark. 11; Neis v. Gillen, 27 Ark. 184. There were no instructions curing the failure to give these. There was no error in refusing to give the 5th, as, if the appellee is entitled to damages for wrongful arrest, they are not recoverable in this action. For the errors indicated, the judgment is reversed, and the cause remanded for a new trial. Riddick, J., and Buñn, C. J., absent and not participating.