Tanner v. Johnson , 119 Ark. 506 ( 1915 )

Wood, J.,

(after stating the facts). Appellant Stewart was surety on the note which. Tanner executed to Johnson in consideration of the purchase price for the horses, of which Johnson retained title. When Tanner sold these horses before the note was paid he turned over the proceeds of the sale to ¡Stewart. Stewart, therefore, is not damaged and is not in an attitude to resist the payment of the note nor to claim that appellee Johnson elected to rescind the contract evidenced by the note by instituting the suit in replevin for the horses, on which he had retained title.

While the record shows that.Johnson instituted a suit in replevin for the horses and that a verdict was returned against him and in favor of the defendant in that suit, there is nothing in the record to indicate the ground upon which such verdict was based, and nothing in the present record, as abstracted, to show that final judgment was entered against Johnson upon that verdict. Neither of the appellants here were parties to that suit, and even if a judgment had been rendered there it could not be pleaded here as res adjudícala of the present suit, nor was the institution of the suit in replevin and the mere fact of the rendering of a verdict in favor of the defendant in that suit against appellee Johnson any evidence that appellee had made an election between the remedies which he had on the contract evidenced by the note in controversy. These remedies were either to sue the appellants in replevin to recover the property, if they failed to deliver the same to the appellee on demand after the note became due, or to waive title to the property and the right to sue for the possession of the same, and in lieu thereof to treat the sale as complete and ask for judgment on the note.

"When Tanner sold the horses and possession thereof was delivered to a third party, he placed it ibeyond the power of the appellee Johnson to sue him (Tanner) and his surety, Stewart, for the possession of these horses. They can not set up that a suit instituted by appellee Johnson against a third party for the possession of the horses was an election between remedies that Johnson had against them on their note.

It is conceded that the verdict of the jury correctly settled the issue that they had not paid the note sued on. Nothing in this record discovers on what grounds as before stated, the suit instituted by the appellee in replevin was determined against him. "Whatever might have been those grounds, the appellants can not avail themselves of them as a defense to the present suit, and the doctrine of the election of remedies has no application. The authorities cited by the appellants are not in point. In all of those cases, the suits in which' it was held that there was an election of remedies were between the parties to the original contract, or their assignees; there was a privity of contract. In this case it is not pretended that there was any privity of contract between the appellants and the parties whom the appellee sued in replevin to recover the horses which appellant Tanner had sold. As against the appellants the appellee has never sought any remedy except to recover the amount due on their note.

The court, therefore, correctly ruled that the proffered evidence was not competent as a defense to the suit on the note. The judgment is, therefore, affirmed.