Sullivan v. Wooldridge , 107 Ark. 256 ( 1913 )

Hart, J.,

(after stating the facts). As will be seen from the statement of facts, Wooldridge brought this suit against Sullivan to recover on a due bill given by the latter to the former for the purchase price of some logs. Sullivan refused to pay the due bill because the Bradley Lumber Company asserted title to the logs and claimed that it was entitled to the purchase money. Wooldridge had warranted the title to the logs and admitted that he did not have any title thereto, and that he did not pay anything for them. He did not give the notice required by the statute of persons taking up property and did not otherwise attempt to comply with the Salvage Act. Therefore, he even forfeited all claim to salvage. Kirby’s Digest, § 7476. The Bradley Lumber Company without objection was permitted to become a party to the action for the purpose of asserting its title to the timber and claiming the proceeds. At the time that Sullivan purchased the logs, he did not know that Wooldridge did not have title to them.

In the case of Hynson v. Dunn, 5 Ark. 395, the court held that where a vendee of personal property protects himself by covenants of warranty and is let into possession, he can not defend against the payment of the purchase money without a pervious eviction. The court said it would be unjust to permit a vendee to retain possession of the property and put his vendor at defiance. This rule was also recognized in the case of Brown v. Smith, 6 Miss. 387. And the court there said that in general the rules which apply to sales of real apply also to those of personal estates, and gave as its authority for so holding 2 Kent’s Commentaries, page 471.

In the case of McDaniel v. Grace, 15 Ark. 465, the court said: “Where the purchaser has taken a deed, with general covenants, of warranty, and there is a total failure of title and an eviction, or its legal equivalent, and the vendor sues for the purchase money, the purchaser may avail himself of the plea of failure of consideration, and will not be forced to pay the money, and then resort to cross action upon the covenants of his deed to recover it back” (Citing authorities). See also, Benjamin v. Hobbs, 31 Ark. 151.

As we have already seen, the Bradley Lumber Company. was permitted to become a party to the action for the purpose of asserting its title to the logs and to recover the purchase price therefor. By its action the Bradley Lumber Company elected to confirm the sale by Wooldridge to Sullivan and to seek to recover the proceeds of the sale. No objection was made to this course of proceeding and all of the parties to the action treated it as a contest between Wooldridge and the Bradley Lumber Company as to which one owned the timber and should be entitled to recover the purchase price of the logs. So in the application of the principles above announced, if the evidence in the case shows that the Bradley Lumber Company had the title to the logs, then treating the action as the parties themselves have treated it, the Bradley Lumber Company would be entitled to recover the proceeds of the sale, and this would be equivalent to an eviction of Sullivan. In such case Sullivan could defeat the action of Wooldridge for the purchase price of the logs on the ground that there was a failure of consideration. Viewing the testimony in its most favorable light to Wooldridge, we think the undisputed evidence shows that the logs belonged to the Bradley Lumber Company. The testimony which we have given in the statement of facts, and which need not be repeated here, we think conclusively establishes that fact. The evidence adduced for the Lumber Company shows that timber corresponding exactly with the size, kind and measurement of the logs sold by Wooldridge to Sullivan was cut from its land and floated down the river. The stumps of some of the trees had peculiar marks on them which corresponded precisely with the marks on the logs, and the size, character of timber, and measurements were the same. It is true Wooldridge introduced evidence tending to show, that other logs had been floated down the river about the same time, but he does not show these logs were freshly cut and the other evidence in the case shows that there was no timber cut about this time on any lands in that vicinity except that cut on the lands of the Bradley Lumber Company.

The evidence adduced to establish the title of the Bradley Lumber Company to thé logs in question was reasonable and consistent in itself and conclusively shows that the logs were taken from timber cut off of its land. The evidence of Wooldridge to the effect that other logs 'vtere floated down the river was too slight and trifling to be considered or acted upon by a jury. It amounted to no more than a mere surmise or conjecture that the logs belonged to some other than the Bradley Lumber Company, and could by itself have no legal weight. To hold otherwise, would be to say that a scintilla of evidence is sufficient to send a case to a jury, and this doctrine has always been repudiated by this court. Therefore, we hold that the undisputed evidence shows that the title to the logs was in the Bradley Lumber Company and, treating the action and proceedings as the parties themselves have treated them, the court should have directed a verdict for the Bradley Lumber Company. In this view of the evidence the consideration for the due bill failed and Wooldridge was not entitled to recover thereon.

Because the court erred in not directing a verdict for the Bradley Lumber Company, the judgment in favor of Wooldridge will be reversed and, inasmuch as the record shows that all the facts in the case have been fully developed, the cause of action of Wooldridge will be dismissed, and the judgment will be entered here for the Bradley Lumber Company against Sullivan for $123.46 and the accrued interest.