Geiser Manufacturing Co. v. Davis , 122 Ark. 193 ( 1916 )

Kirby, J.,

(after stating the facts). The testimony is undisputed that the transaction was a conditional sale of the property by the manufacturing company to E. C. Davis, with a reservation of the title in said company until the purchase price was paid.

It is further undisputed that the purchaser had not paid any part of the amount even of the purchase price he admitted he had agreed to pay, up to the time the suit was brought, nor had he ever offered to do so in such a way as amounted to a tender of the amount due. His statement that he offered to pay to the agent said two notes of $75 each of the purchase money, if the agent surrendered to him the old notes under the first contract did not 'amount to a tender that would relieve him from the payment of said notes nor divest the title of the property from the seller, the manufacturing company. Such offer was conditional and did not amount to a tender. Fields v. Danenhower, 65 Ark. 400.

The title remained in the seller until the purchase price was paid according to the terms of the sale and the uncontradicted testimony shows that the purchaser had failed to pay the notes that he even agreed were due as ■part of the purchase money and that the seller had resumed the possession of the property under his claim of ownership and the right thereto. Having the right to take possession of the property at .any time before the money due for the purchase price thereof was paid and having actually resumed possession of it before the payment or tender of the purchase price, it could not thereafter be replevined by the seller who had failed to pay the purchase price .and permitted the seller to retake the property. The title of the property and the possession thereof were thereafter rightfully in the manufacturing company, the owner, and the purchaser had forfeited his right and could not maintain replevin therefor. Tiffany on Sales, 138.

Upon the undisputed testimony the court should have directed a verdict for the appellant. The judgment is reversed and the cause remanded with directions to enter a judgment restoring the possession of the property to said appellant manufacturing company. It is so ordered.