Berger v. Miller

Wood, J., (after stating the facts.) The court erred in refusing to grant appellant’s prayers numbered two and four. The evidence on behalf of appellant Berger tended to show that the sale of the'stove in controversy was made upon condition that the title should remain in him until the purchase price was paid, and that, in case of default in the payment of any of the installments when due, he should have the right to the immediate possession of the property. Under such a contract the vendor would have the right to the immediate possession of the property. Ferguson v. Hetherington, 39 Ark. 438; Kirby v. Tompkins, 48 Ark. 273; McRae v. Merrifield, 48 Ark. 160-164; Simpson v. Shackleford, 49 Ark. 63; Ames Iron Works v. Richardson, 55 Ark. 642; Faisst v. Waldo, 57 Ark. 270; Edgewood Distilling Co. v. Shannon, 60 Ark. 133; Public Parks Amusement Co. v. Embree-McLean Carriage Co., 64 Ark. 29. See also, Little Rock Vehicle & Implement Co. v. Robinson, 75 Ark. 548. The theory presented by these instructions was not covered by any of the instructions given. The appellant Berger was entitled, under the evidence adduced by him, to have this specific contention submitted to the jury, and for the error of the court in refusing it the judgment is reversed, and the cause is remanded for new trial. Hire, C. J., did not participate.