1154 JACKSON V. CARTER. [169 JACKSON V. CARTER. Opinion de1iver6d December 21, 1925. 1. SALES STOLEN PROPERTY—BURDEN OF PROOF.—In a suit on the purchase-money, notes given in payment of an authmobile, where the defense was that the car was stolen and that plaintiff had no title, the burden of proving that the car was stolen was on the defendant. 2. JUDGMENT—RIGHT TO JUDGMENT NOTWITHSTANDING VERDICT.—Under Crawford & Moses' Dig., §§ 6271, 6273, defining the cases in which a judgment notwithstanding the verdict may' be rendered, judgment may not be rendered notwithstanding the verdict because there was no evidence to support the verdict. 3. APPEAL AND ERRQR—RENDERING FINAL JUDGMENT.—Where it is • manifest that a cause has been fully developed, and that if the • 'court had properly instructed the jury plaintiff would have recovered a verdict, the Supreme Court, on reversing the case, has authority to enter judgment for the plaintiff.
ARK.] JACKSON V. CARTER. 1155 Appeal froin Washington Circuit Court ; W . A. Dick-son, Judge ; reversed. W. I. Whit6 . , for appellant. Woon, J. W. F. Jackson instituted this . action in the circuit . court of Washington County against B. C. Carter. The foundation of the .action is three promissory notes exectited by Carter to Jackson for the purchase of an automobile: The motes -Were dated November : 22, 1920, one for the sum, of . $833,'and two' for the sum of $833:50 each, due respectively February . 1, 1921, NOVember 22, 1921, and November 2,1922, a total sum of $2,500, bearing interest at the: rate of ten per . cent. per annum from date until paid.. T,here was 'a:.credit in. the sum'ef $200 paid June 20, 1923, as shown by the • notes, 'copies Of which were. made exhibits to the .complaint. In his answer to the complaint, -Garter admitted-that he 'purchased the automobile of Jackson, and' admitted the- execution of the notes:for the Pnrchase price thereof; but 'alleged that' the automobile was a . stolen car at:the tiine: the same was.sold to him by • Jackson,.and that therefore the consideration *for the notes had failed. • The notes were introduced, and Carter- admitted their 'exe • cution. and delivery.. Carter then testified in stibstance that he' executed the : notes . to the people from Whoni he purchaSed the car through-one Rek Lewi's; 'who conducted the negotiations :for Jackson, repreSentihg the • Paige MOtor Company of San Angelo., Texas. The notes • were Made 'to the Angele M6tor Sales Copany. 'The car was a • big Paige six. Witness took possession' of the car at once, and used it in gOing to church and 'town for family purposes only. 'The 'ear had been run for 'about a . yeari .• It had Goodyear tire on it,' :showhig that it had been' ran considerably, yet it was in:good shape. Witness ran the car with those Same tires over . a 'year, and they . did not giVe away: Witness kept 'the ear in his POssession abonf tWo yearS. When the first nOte became due,: it was extended to the 22d' of February, and on that ,date • -Witness went to San Angelo with the car, andeffeeed the car to the mOtor cOmpany from.which
1156 JACKSON V. CARTER. [169 he 'purchased same, stating that he could not pay for it. The company took it back. It was to keep the car up a year. The next time a note was due, on- November 22, 1922, witness went to see Jackson, and told him that he could not make a payment. Witness -offered to . assign Jackson a policy carried by witness with the Woodmen of 'the World.- Jackson did not take the policy, but told witness to carry tbe car back and have it insured' and make the insurance over to him (Jackson); .Witness did-not have the car insured. The •Company never 'gave witness -a bill of sale to the car. Witness heard that the car . was a stolen car, and went dOwn to see about it, 'and the sheriff-told witness that he had• the car; on his books, and asked witness to keep it until he called for it. 'What the sheriff nieant by having it on his books was that it was stolen property. After the third' note beeame due, Jack-son -Wrote to witness a'boht it, and wanes's went to see the sheriff of ;the county and offered to turn the. car over to him, and-the sheriff wrote to Jackson, but did-not get Any answer. About the tiine the sheriff 'should have* received an:answer, Jackson came with hiS attorney, and.they and witness . Went to the sheriff's office together. The sheriff told Jackson that he had the ca p on his boOks as a stolen cal' which had been reported 'by -one Rex -LeWis; a salesman of the company, who was then in jail. eRex Lewis , was the man who sold witness the car. The sheriff said that he got after • Lewis so close that -he turned State's evidence . and turned- in a list -of 1 . 50 cars as 'stolen cars, and the car in controversy was. on the list. - Jackson then wanted to know what witness would do about it,.and witness replied, "If they ever straighterrit up,1 will pay for it." The sheriff then said,- "Whenever you-straighten it up, he is ready to settle -with yob.," and the sheriff also stated, "If you -don't, he won't give you anything: Yon have got to come clean." The sheriff then asked Jackson hoW long he wanted, and Jackson . replied that he wanted ten days. When the ten days were up, witness went to the sheriff and said, "Now, Jim, the ten days is up—what are you going to do about it," and the sheriff "replied, "Oh,
ARK.] JACKSON. 2). • CARTER. 1157 yes, you go on,*atd • let me . know:where t you are at. ':' • Witness waited untinhe ten days :were up -f or : Jaeksdh:to come clean. • 'Jackson. did 't ot report At the) end : of leh days;f and withess moVed filbm 'Texas, to Washington County; Ark-'afisas. In. Texas' they require a' bill! of :Sale • to 'be ,issted with -a car:-.-Ther : did 'not give Wittes§ sale ...With 'the • car,: and • JatIcson'§-attorhey . the . iiresence ..of tbe sheriff, : that he 'knew that Jackson liadlviolated :the ,State laws ( Of Texas: When he , did not:'give 'witness athill 'of sale' for the' car:: •i !''' tr !“ :On 'croSs exattnatiOn, With le I ss stated' 'that *he'll 'he left TeXa§ 'he rat tOtify -JäaSiit-f that'h e . ' *a§leaving. WitrieSs had left' 'the c'al• 'in the . ha'nd . 'the' Sheriff 'for ten 'daY§:' When *cites §' boughtthe 'Car; 'he did i !iot:r ask for hill Off sAle.'"Witne'sS ,told! j aras'ofr; 1 in the 'conversation ii the presence' Of :the 'sheriff, that i he would: paY Tor 'the :car- if 'J'ackson; , r;roved , -byf 'doemnentary ,evidende,within :ten: days thatile oWned the, car 'at the • time : lie, sold- it. 'JackOii did mot bring forward the evidehee )withiri,tOn days; andlir itness-Wa§ then* at liberty. Witneks was a§ked .if Rex Lewis, the ageht for the' company: which sold: bith the car,'had tbt been'arre§ted and.'conipletelyt exonerated of all • conneetion i with-, the; . Of. r the' ', Car c and arisWered;,` think he:was Jill, 1 ifeW))days. Y LeWi§ *as -released .aboht four . day§ after , he 'Was arrested.' • I IThe -: car -was never actually taken --fr th e -withe'§s Phè fsh er-iff told witness When hedeft'Texas:to leave:the Jearothere with 'him.' Vittess, came• to .ArkansasTand! before :he did .Ab he took the -. car u to 'the :garage , laMd:ttirned; the'ley over toither sheriff,' 'and wittes's supppsed that the • sheriff bad turned-it bver• 'to Jackson: : The :car rat , that time was worth about $1,500:' , When:Witness' left Nbtton,. Texas,' he did .'n6t,' Jacks . On where:he; WaS ?key ing: While; witn68s -was at Nortoni : Jackson, ' frequatlr . defnandedi Payment of the note§,..blit witness' did no.t ifay'rthem; aild infohned Jackson of 'that -fact. . Witness ' did hot have the, car ;insured . . for' Jaekson's benefit/ because 'he 'did, not have - the money to ' spare 'for that ;purpose:- ::; •)-
1158 JACKSON V. CARTER. [169 Jackson testified that in the year 1920 he was in the automobile business in San Angelo, Texas, under the name of Angelo Motor Sales Company, la partnership, composed of himself and one L. A. Ellis. The partnership employed Rex Lewis as a salesman, and Lewis sold a Paige automobile to Carter for the partnership for the consideration of $2,500, evidenced by Carter's notes for that amount. Witness bought out his partner, and was the owner of the notes. When the first note \ became due, Carter stated he could not pay the same,' and witness granted him an extension of time. When the other notes came due, witness demanded payment, and Carter stated that he was unable to pay them. He made . repeated promises to pay the notes, and never disputed the account :in any way, but never paid the notes, and left Texas without paying them. Witness had a chattel mortgage on the car; and . afterwards obtained possession of the same. When witness took possession of the car, it was in a depleted.condition. Witness advertised . and' Old the car under the chattel mortgage after giving ten days' notice in Ihe, newSPapers as prescribed by the mortgage. The car was sold to the highest 'bidder, and it brought the sum of $200, which was‘ duly credited on Carter 's notes. .When Carter' sold his farm and left Texas, he did not give witness notice that he . was leaving. Witness afterwards met him at Ballinger, Texas, and Carter 's excuse for not paying for the car was that he had found out through the sheriff that the car was a stolen car, and until that was straightened. out he refused to make any payment omit. Witness offered to prove to Carter that he and his partner owned the car at the' time it was sold to Carter. Witness exhibited a bill of sale . to Carter from the Paige Motor Company,..which bill of sale witness exhibited to the sheriff at Ballinger, Texas, who had the car in his pos-. session. Carter left Texas without leaving his:address with witness, or making any arrangements 'whatever for the settlement of his notes. Witness located Carter after he had left Texas through the agent of the Frisco Railroad
ARK.] JACKSON v. CARTER. 1159 company at Fayetteville. Witness stated that, in a conversation between witness and the sheriff , and: Carter before , Carter. left Texas, Carter stated that, if he could get an affidavit from the peoplefrom whom witness bought the car stating that witness was thelegal owner of the'car at the time it was sold, he was ready . to. make settlement for it, and that he would stay around Ballinger until witness got the affidavit. Witness got such affidavit, but in the meantime Carter. had left . Texas without paying his ;notes. Witness introduced in evidence as part :of his deposition the chattel mortgage executed ,by- Carter to the Angelo Motor Sales Company on the automobile purchased by him from said , company,: , and offered introduce affidavits showing the bill of sale from, the Paige Motor Company to the Angelo Miotor Sales , Qom-pany on the, car which the latter company sold to Carter. The court excluded these affidavits. ..; „ , L. A. Ellis testified that he was a partner of Jackson in,the automobile business in the .year ; 1920 , under the name .of Angelo kotor Sales Company. at San Angelo; Texas. .He corroborated the testimony of Jackson as to the sale of the , car by, their agent, T-J ewis, and that the partnership was afterwards dissolyed, and : that ,Jackson has succeeded to witness' share of the. assets ,of the business, including the:notes in controversy, , Witness , stated that the partnership bought,the car from the Texas , Paige Company of Dallas, Texas, the regular , distributing agent for the Paige automobiles, . • • , Rex Lewis testified that .he was employe,d by the Angelo Motor Sales Company, and corroboratedthe testimony of jaekson and Ellis in regard to tile saip ,of the car in controversy by him , to Carter. Witness ; stated that he sold Carter the car, and that darter took . th.e car and kept it and never paid for it ; that he still owes' for it. A witness by th , e name of Loveland:testified that he, Jackson and Carter and the sheriff, of RunnelslCounty; Texas, had a " conversation in the. sheriff's office..with reference to the legality of the sale of an automobile from
1160 JACKSON V. CARTER: [169 the Angelo: . Motor 'Sales Cbrapany to Carter ,by Rex LewiS; in which' to•ver§ation Carter 'stated that he 'would p'ay foe the ca;]L' immediately -Upon proof being Vroduced that the . cat ; was . not a' stblewcar at the tithe : of . its sale. Witne'sS, at that' time, 'was !the attorney for 'Jackson. Witness Obtained Proof from the'manufacturerS of 'the 'car that the 'had been ; sold/ laY theM to. their Texas ag'ent ati Dallas, Texas; and also 'Proved froth the Texas agent at ] allas that lie had sold the car in question to the Angelo Motor-Sales' Coinpany:y Witness todk that 'proof to 'the , sheriff of RunnelsTountY, 'who at that time had been putin pó§session of , the car . thy Carterbef ore Carter left:Texas, and wAness then learned for the first . time that there .ws armoi.tgae on thc , car in f ditoP of. the.Angelo MotOr 'Saks COnipany giVen . by Carter 'to .` secure 'the pak-ment of, 'MS ! notes , to the 'COMpany;: *hich ! mortgage . Was then on file with the cOnnt l y-L clerk i bf nunnels' l Count, Texas. ;_ 1.) t , .t ! af . ■:;i:. , WitnesVCarter; 'being 'redalled,'te g tified 'that, 'after they tholt, -the car' from Witneis, neVer' PFoinised to pay thetu, i 'aiid 'ha& no further communieation With them atbut : the ear dtet thearéëdo furni gh 'predf that th'ey OWnedl the 'siun'U the' tinie Of HS' sale:" They neVer, furnish4 witilesS Wi'th l a bill 'Of sale. that they" got 'it' from the' Paige' . 1glitor ' CeinPany to this"day: ' WitlieSs w'aA dOwn there' at . hiS home' in' R-UnneN ' WitneSs got the car, 'and neei . ' .slecl‘theth for ahill 'Sdle, , but; under the laws of Texas, they were suPPbs'eatd'give it: ' Th " e cour t t 4 m h §trUc ' ted e jury e ec 'il l' a it e th b ' ' ur-den Of proof was Upon Carter to shovi that the' consideraT tibn ' df 'the na g 'had 'failed beeauSe Of the faet that 'thd 6,11 wa§' a (stolen Car When 'sOld the . AnkelOUOtoi . ales CbinpanY l tO Caite' t ; 'that; 'if the jurY fonnd froin the evidence that the'notes were' giVen' for : a' Stblén 'theVer-: diet. sh .OUlddbe for' Catter i arid, if the jury failed 'to , s6 find, the iverdiet sho-ad be•in favor : of JaCkson;' that it was a question'for the jury undetthef acts and circumstances in evidenCe:.. '; - • • •
J:ACKSON 1).' CARTER. .,•, „ „ ) 1161 • No objections were made 1L-•iy, either , , party, to. the -instructions : of the court.1, The, jury returned a;xerdict in favor of; the defendant. Jackson filed a , motion asking , the ; court , to, render judgment in ,his , favor,: motwith-standing the ,verdict, and, ,olso , ai motion ;for ;a. new ; trial. The court :overruled these •motions, and ; entered a; judgment in faVor of Carter, from:which is ;this appeal.. : The testimony is' , set forth 'oti length abovey and it Shows dearly that. there is no : testiinony sa§tain -the .verdict. .; The burden. of ;j3roof was , on : Ithe . appellee, rand he wholly fails . to pr'ove ! that the , car for WhiCh-i he'executed the notes. was Stolen /property , at the 'tithe he purchased . the, same fronethe , .Moter,SaleS Company. The 'proof is not. sufficient to.showIthatThe..bonSideration for whieh the' notes : in-controversy Were executed, had faiied The , cOart therefOre erred' in , not settiiig aside the verdiet of the Jury, t •and 'in; mot &orating appellant's motion for a new trial. -, • r But § 6271 of Crawford & Moses' Digest provides : "When a trial by jury has been had, judgment must be entered by the clerk in conformity with the verdict unless it is special; or the court order§ the 'ease to , be re'served for future judgments , of consider i ation,:' . . .And,§ 6273 pro- vides : "Where, upon'the statements in the pleadings one 'party-4s 'entitled by faVrto jiidgrriebt'in hirra0Y;judg-nient shall be 0 'entered bY, the ,court, though ,a Verdict had'been, found, against. such . , . : The facts of, this record do not bring the case within either , of the?above ;s,ections of our. statute. The verdict was not, special', the ease . WOS notreservedby the cinirt for future ! judgment or 'considerati j on, and thefe WAS no statetheirrin the' plead-'ingS , id jiiAtifi the CO l ift in CnteAng a juigment, rn favor of the appellant. , therefore;: ;the, appellant. ;was:, not entitled to a judgment /non obstante . veredicto,,-;4 The motion in arrest of judgment in civil . causes isranknown to oar system of practice, and, where it , dOeS obtain,. can be maintained onlY for , a defect iipOn the face of,the.tecord, of '- vhich the evidence COnstitutes V.
*ewport Water . do., 100 Ark:47-52; Ryan v. Fielder, 99 Ark..374. See al. o Schearff Distillery Co. v. Dennis, 113 • Ark. 221J 225. HoWe y er, it is manifest that the &auSe has been fulV developed, and, if the trial court had properly instructed' the jury in accordance with the evidence, the appellant Would have obtained a verdict and judgment in his favor. Under § 2171 of C. & M. Digest this court has the power, when the judgment of the trial court has been reversed, to remand or dismiss the cause, and enter such judgment upon the record as it may, in its 'judgment, deem Just.. Under the authority thus conferred 'by the above statute, it seems just to us that the appellant have judgment in his. favor without . delay and expehse of another:trial. For the error indicated, the judgment is :therefore reversed, and judgment in favor of the appellant will be entered here for the aniount found to be due on the notes at the time of the , entry of such judgment. It is so ordered.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.