American Soda Fountain Co. v. Futrall , 73 Ark. 464 ( 1905 )

Hire, C. J.,

(after stating the. facts.) Three errors are alleged to have been committed, viz: (1) overruling the demurrer to defendant’s answer; (2) transferring the case from law to equity; and (3) finding the value of the old fountain at $200.

1. The old fountain was converted to appellant’s use in the face of the mortgage resting upon it, and its value to the extent of $300, the agreed price thereof, went into the new fountain, the subject of this suit. These facts constituted a trust ex maleficio, and impressed the property with an equitable lien to the extent of the value of the old fountain. Humphreys v. Butter, 51 Ark. 351; 2 Pomeroy, Eq. Jur. § § 1051, 1053; 2 Story, Eq. Jur. § § 1255, 1258.

2. When sued at law, a defendant must interpose all the defenses which he has, legal or equitable; and when one is purely of equitable cognizance, that issue must b.e determined in chancery. Daniel v. Garner, 71 Ark. 484. That was the case here. The facts did not constitute a special ownership as claimed by Futrall, but did present an equitable lien against the property. Equity enforces these trusts ex maleficio against the property acquired with converted property or its proceeds, although there may be an action at law for damages. 2 Pomeroy, Eq. Jur. § 1053. That an equitable defense may be interposed to a replevin suit is settled. Ames Iron Works v. Rea, 56 Ark. 450; Johnson v. St. L. Butchers’ Supply Co., 60 Ark. 387.

3. There was ample evidence to support the chancellor’s finding that the fountain was worth $200. The testimony relied upon by appellant to establish its value at $25 was given by workmen in appellant’s factory in Massachusetts. Conceding their •greater knowledge of the value of the fountain and each part of it, yet théir testimony is as to its value and condition in Massachusetts. It was converted at Fayetteville, Ark., and its value then and there fixes the measure of liability. Finding no error in the decree, it is affirmed.