Jones v. Wolfort , 80 Ark. 474 ( 1906 )

Battle, J.

Wolfort sold to Thomas Jones and James Garrett a mule for $185, with the understanding and on condition that, if it did not suit or was not satisfactory, he would let them have' another in lieu of it. They executed to him a promissory note for the purchase money, and a mortgage to secure the payment of the same. The mule did not prove satisfactory, and they returned it, and Wolfort let them have another in lieu of it, as he agreed to do, and the latter died from ill treatment. Jones then brought suit in the Pulaski Chancery Court to require Wolfort to satisfy the note and mortgage; and Wolfort filed a cross-complaint, and asked that the mortgage be foreclosed. The court rendered a decree against Jones for so much of the note as remained unpaid, and for the foreclosure of the mortgage.

The return of the mule first sold did not. satisfy the note or mortgage. One of the terms of the sale was that it might be returned and another substituted for it, which .was done. The return did not satisfy the note or release the makers. That was not the contract. The effect of it and the substitute was to leave the parties and note and mortgage in the same condition they would have been had the second mule been sold, instead of the first, and had been the only mule sold.