Chambers v. Posey ( 1871 )

Opinion oe the Court by

Judge Hardin:

The admission of the appellant, in his reply to the appellee’s answer and cross-petition, together with the written agreement exhibited, with the reply, show conclusively that the appellant’s claim to the four mules was solely denied tinder and by virtue of the contract made January 18,1870, which stipulates that on that day the appellee, G. I). Posey, sold to appellant various articles of personal property for sums amounting in the. aggregate to $1,524, of which he paid down $465, and was to give his note for the balance of $1,059 payable twelve months thereafter, and that he did not receive the possession of the property, nor deliver or tender the note before he brought this action for the recovery of the mules. This court is of the opinion that before the plaintiff could maintain an action to recover the possession of the mules he was bound to perform his part of the agreement by giving or offering to give his note, and upon the pleadings alone the court might have properly instructed the jury to find for the defendant, as to the claim to recover the possession of the mules, and this being the extent of the verdict rendered, and the judgment of the court, it is not material or necessary to inquire whether the rulings of the court as to the evidence and instructions given and refused were correct or not; the result being as favorable to the appellant as the pleadings authorized.

Wherefore, the judgment is affirmed.

Judge Lindsay dissenting.