Hollman v. Roush

Wood, J., ('after stating the facts). The court erred in its instructions. In instructions given at the request of the appellee the court, in effect, told the jury broadly that if the appellee contracted to sell the machinery in question to Protho & Holiman and at the time reserved title in himself until the purchase money was paid, and that if they found from the evidence that the purchase •money had not 'been paid, their verdict should be for the appellee. These instructions entirely ignored the issue as to whether or not the appellee, after entering into the contract' with Proitho & Holiman, thereafter ratified the acts of hiis vendees in executing the mortgage on the machinery under which .appellant, W. H. Greer, holds. True, the court granted prayer No. 4 of appellant, in which this issue was .submitted, but this prayer is necessarily in conflict with the instructions granted at the instance of the appellee. While ¡there were no specific objections to the instructions granted at the request of the appellee, instruction No. 4, given at appellants’ instance, was ¡tantamount to a specific objection to appellee’s prayers so far as the issue of ratification was concerned, and also prayer No. 6 of .appellants, which the court refused. Prayer No. 6 should have been given. The same idea was not covered fully in instruction No. 4, given at the request of appellants. There was testimony to warrant the Court in' sending to the jury the issue as to Whether or not appellee had ratified the conduct of his vendees in executing the mortgage under which .appellant Greer claims the right to possession of the property, and the issue as to whether or not appellee had received the benefit of the money derived from 'the mortgage, ¡knowing at the time that the property had been mortgaged, and thereby estopped 'himself from setting up title adverse to one who holds under such mortgage. In Bell v. Old, 88 Ark. 105, we held that a vendor of chattels waives a reservation of title where he consents to the execution .of a mortgage by the vendee, at least as to the mortgagee and those claiming under him. The above principle is .applicable here and the court should have submitted this issue, along with the other issues, in instructions that were not in conflict, .and therefore calculated to mislead the jury. For the errors indicated the judgment is reversed and the cause is remanded for a new trial.