Jones v. Burks

Wood, J., (after stating the facts). The court erred in directing a verdict in favor of the appellee. As to whether or not appellee had estopped himself from claiming title and right to the possession of the automobile in controversy, was a question for the jury under the evidence. Appellee relies upon the authority of Watkins v. Curry, 103 Ark. 414, to support the ruling of the court directing a verdict in his favor, but in that case the facts were entirely different. There we said: “There is no testimony in the record to warrant the conclusion that appellee Curry estopped himself from setting up his right to the automobile under his contract with Hughes after the latter had failed to pay the purchase money.” Again, “There is no testimony whatever to warrant the finding that the appellee, at the sale, participated in the purpose of Hughes and sold the car for the purpose of having the same advertised as one of the prizes to be given away in the contest.” But here there is testimony which would have warranted the jury in finding that appellee sold the car to the Bulletin Publishing Company for the very purpose of having the same advertised as one of the prizes to be given away in the contest. In the case of Watkins v. Curry, supra, Curry, who was seeking to recover the automobile in controversy in that suit, had a written contract reserving title until the car was paid for and he had done nothing whatever to encourage the contest which had been instituted by the newspaper while the same was in progress. Curry lived at Monticello. He did not know at the time he sold the automobile that the purchaser bought it for the purpose of awarding it as a prize in a newspaper contest in the adjoining county of Bradley. There was nothing to show that he was present when the contest was going on or that he in any manner encouraged or participated in the contest. /The most that the testimony showed was that while the contest was in progress he wrote to the paper expressing gratification at its success. But here the testimony of Shelton, a partner of Biggs in the commission on sales, showed that the only commission they were to get was “an ad. in the paper.” Biggs and Shelton were personally present while the contest was in progress, participating in and encouraging the contestants to believe that the car in controversy would go to the suc: cessful contestant. Appellee himself testified that he drove the car up and down the streets of Hot Springs; that the car bore banners and streamers with red and black letters on them, showing that the car in-controversy was the contest car. While Shelton testifies that he had no authority, without an order, to deliver a car that Avas not paid for, yet he and the appellee both say that he was a partner with appellee and interested in the commission sales. Shelton stated that he was interested ‘ ‘ with Mr. Biggs in the Overland automobile sales in Hot Springs in April, 1911; that the Overland model in controversy was brought to Hot Springs for the Bulletin Publishing Company. ” As to whether Shelton had authority to deliver the automobile was, under the circumstances, for the jury to determine. The testimony of appellant herself and of a witness in her behalf tended to show that after the contest was over and appellant had been declared the winner of the prize that Shelton delivered to appellant the machine in controversy. This testimony, in connection with the other evidence, was sufficient to warrant the jury in finding that the automobile in controversy had been delivered to the appellant in pursuance of the contract of sale between the appellees Biggs and the Bulletin Publishing Company, and that the sale was completed by such delivery. Shaul v. Harrington, 54 Ark. 305; Elgin v. Barker, 106 Ark. 482. The testimony was sufficient to warrant a finding that the appellee had turned the car over to the Bulletin Publishing Company for the purpose of being advertised and used as the car that would go to the winner of the contest. Appellant succeeded in getting $1,400 subscriptions for the capital prize, which she turned over to the manager of the Bulletin Publishing Company, and she would not have done this had she known the car was not the Bulletin car. The testimony warranted the finding that appellee, by his conduct, had held the car in controversy out to the public as the car which the Bulletin Publishing Company had offered as the prize to the successful contestant. The court erred in excluding the testimony of witness as to the declarations of appellee to the effect that the contest was on the square and the person who won the car would get it. It was not shown that these declarations were communicated to the appellant, but the testimony tended to establish appellee’s participation in the contest and his consent to the delivery of'the car to appellant after the close of the contest. For the same reasons the testimony as to the streamers on the car and as to the car being in front of the Bulletin office on the night that the contest closed, should not have been excluded. The case turns on the question of appellee’s participation in the scheme of awarding the car as a prize to the successful contestant, and of the delivery of the car to appellant. Those questions should have been submitted to the jury by appropriate instructions. If the car was not delivered to appellant she can not maintain replevin to recover possession of it. If it was in fact delivered to her with the consent of appellee, either express or implied, and he participated in the scheme, then the title passed, to her and she can recover. If there was a contract of sale completely executed by delivery to appellant, it is wholly immaterial whether or not the contest instituted by the newspaper was a lottery. See Curry v. Watkins, 97 Ark. 153. Judgment reversed, and cause remanded for a new trial.