Malone v. Collins

Hart, J., (after stating the facts). It is contended by counsel for defendant that the court erred in giving the instruction marked “Paragraph 3,” because, they say, there is no testimony tending to show that the contract had been violated by the defendant. They contend that, under the terms of the contract, the only condition under which the plaintiff had a right to retake the property was that the defendant should fail to pay for it. They insist that, under the testimony given by the plaintiff himself, it was not a part of the contract that the mules should be used exclusively on the farm, and that the defendant should not haul ties “with them. In support of their contention, they point to that part of the testimony of the plaintiff which we have quoted in the statement of facts. We have carefully examined the whole testimony of the plaintiff, and, while he was cross examined at length by counsel for defendant in an endeavor to show by him that the contract did not contemplate that the mules should be used exclusively for cultivating the defendant’s crop and should not be used for hauling ties and logs, yet, when the testimony is considered as a whole, we do not think the contention of defendant’s counsel is sustained. The plaintiff says over and over again that, while the negotiations for the sale of the mules were pending between them, he stated to the defendant that he had had trouble the year before with his tenants using mules that had been furnished them to cultivate the land, for the purpose of hauling ties and logs, and that he told the defendant that he would let him have the mules to farm with, but did not propose to furnish him a pair of mules with which to haul ties and logs. He also stated that the defendant understood the terms under which he let him have the mules. The defendant came lawfully into possession of the mules under the contract of sale to him by the plaintiff; therefore, the burden of proof was on the plaintiff to show that the defendant’s right of possession of the mules had ceased at the time the replevin suit was instituted by him. The jury, however, were the judges of the credibility of the witnesses, and it is our duty to sustain a verdict, if there was any substantial evidence to support it. "We think the jury might have fairly inferred from the plaintiff’s testimony that the plaintiff’s contract with the defendant required the latter to use the property in the manner provided in thq contract; that is to say, until the defendant had paid for the mules under the terms of the contract, as testified to by the plaintiff, he had the right only to use them for the purpose of cultivating his crop, and did not have the right to use them for the purpose of hauling ties and logs. See Faisst v. Waldo, 57 Ark. 270. It will be noted that the court told the jury in instruction marked “Paragraph 3,” that if it should find that the defendant had no intention of paying for the mules when he bought them, the plaintiff had a right to bring this suit. The evidence adduced by the plaintiff tended to show that, at the time the defendant quit working his crop and went to hauling ties, his crop was very grassy and badly in need of cultivation. It is true the defendant testified that he was hauling the ties for the purpose of securing money with which to hire hands to work his crop because the plaintiff had refused to furnish him any further, but, on the other hand, the plaintiff denies that he had refused to furnish him, and his testimony tends to show that the defendant had voluntarily abandoned his crop and left it in the grass. • The plaintiff’s brother testified that the defendant had told bim that there was no lien on the crop to secure the payment of the purchase money of the mnles; that the mules stood good for themselves, and that he was at liberty to turn them back to the plaintiff, if he so desired, and that he might do so because the plaintiff would not let him haul ties and logs with them. Under these circumstances, the jury might have found that he had no intention of paying for the mules, and that the plaintiff was justified in retaking them on that account. We think that the case was submitted to the jury on proper instructions, and, under the settled rules of this court, there being evidence of. a substantial character' to support the verdict, it can not be disturbed on appeal. Again, it is insisted by counsel for defendant that there.was error in the form of the verdict. They claim that it should have been in the alternative, and that for this reason the judgment should be reversed. The record shows that when the plaintiff instituted this suit he gave bond to obtain possession of the mules. The defendant filed a cross bond and retained the possession of the mules. In the case of Bilby v. Foohs, 90 Ark. 297, the property was delivered to the plaintiff at the institution of the suit, and the defendant then became the one seeking the return of the property. Upon a judgment being rendered in his favor, he had an absolute right to have the plaintiff restore the property to his possession. The court held that no prejudice, therefore, could have resulted to the plaintiff in that case from the failure of the court to render an alternative judgment against him, and, for that reason, refused to reverse the judgment. So, here, the facts are that the property is now in the possession of the defendant, and, under the judgment rendered, the plaintiff had the absolute right to have the property returned to him. Therefore, no prejudice could result to the defendant because the judgment was not in the alternative; and it is settled that this court only reverses for errors that are prejudicial to the rights of the party appealing. There was evidence tending to show that the mules had been damaged to the extent of $50, and the amount found as damages is therefore supported by the evidence. It follows that the judgment must be affirmed.