534 T --"- GENTRY– HARDWARE CO V. GRAY: - • .GENTRY HARDWARE COMPANY V. GRAY. 4-3030 Opinion delivered June 5, 1933. 1. REPLEVIN—TAKING BY CONSENT—INSTRUdTION. — In an action by a mortgagor to recover from the mortgagee property alleged to have been wrongfully taken, refusal to give an instruction that, though the propeity was not included in the mortgage, yet, if the mortgagor consented to the taking, the jury should find for the mortgagee, held error where the mortgagee pleaded and testified that the mortgagor voluntarily surrendered the property in discharge of the debt.' 2. REPLEVIN—DAMAGES—EVIDENCE. —In an . action by a mortgagor to recover a spray rig alleged to have been wiongfully taken by the mortgagee, testimony that the mortgagor's apple crop was damaged because he could not spray the orchard was inadmissible. Appeal from Benton Circuit Court; J. S. Combs; Judge; reversed.
ARK.] GENTRY HARDWARE CO. V. GRAY: • 535 STATEMENT BY TIIE COURT. - On October 7, 1930, aPpellee, F. E. Gray, -executed and delivered lo the Gentry. Hardware Company , his promissory note in the sum-of $143 with interest thereon. from date, and; to secure the due and prompt.pUyment-of: said note, he execnted, acknowledged and . delivered • his' chattel mortgage. with. power of sale; whereby he _con-, veyed to appellant, Gentry HardwareCompany, _certain personal property.. • . After the maturity 'of the note, the property .:de-. scribed in the mortgage . Was taken possession of by. the; Gentry Hardware Company 'without.process and; this suit was instituted by the maker of the note :and mortgage to recover "one Power spray rig; Myers." . It . was the theory of appellee on the:trial of the case that the mortgage, executed at . thejime and in the man, ner aforesaid, and after its -execution and delivery, was materially altered : in thiS . ,' that ."- One poWei : spray rig, Myers" was inserted in said • mortgage without the knowledge or consent of appellee. It was admitted by 'appellant that the mortgage. Was ultered by- the -addition- 'of, the words,- "one power spray rig, Myers,'' but : was' affirmatively alleged that tbis INT IS done with thelnOwledge. and consent of appellee. Appellant further- defended the suit of appellee on the• theory that appellee• had. vol-, untarily turned over and surrendered .the property to in satisfaction of the mite land mortgage, and that the same , was accepted by it in full settlement and • satisfad-tion of the debt and- mortgage.. • -: Mr. Marvin Carl, one of the partners in -appellant-Gentry Hardware -Company, testified that he went> ont' to see Mr. Gray after the.debt became. due, „ and that Mr. Gray voluntarily surrendered tbe property to him in satisfaction of the note and mortgage. • The witness. testified in reference to the delivery of the property as. follows: "I said,'Ilow will it .suit to : give us. this plow, spray rig and harrow, and we Will give you your note and. mortgage and we will call it even?' He said, , `All :" ' - Appellant requested the court to give to the jury its instruction No. 4, as follows:
536 - GENTRY IIARDWARE CO. V. GRAY. [187 "It is alleged by the defendant that the plaintiff turned over the property to him in settlement of the indebtedness secured by the mortgage, and, if you find that the plaintiff did tUrn over and deliver the spraY rig, plow and harrow to ;the defendant in settlement for the indebtedness, your verdict should be for the defendant, though the spray rig was not included in the mortgage bY consent .of .the plaintiff." . The court refused to give appellant's requested instructiOn No.. 4, and proper objections and exceptions - were preserved thereto. The jury returned a verdict in favor of appelleC, from which this appeal is prosecuted.' It will not be necessary to state in further detail the testimony introduced in said cause nor the instructions given and refused, because of , the view which this court takes of fhe controversy which wilrappear in the opinibn. W..A. Dickson, for appellant. • JeuxsoN, C. J., (after stating the facts). Fibm•the foregoing statement of facts it' appears that appellant affirmatiVely pleaded that appellee had voluntarilY surrendered the Property in controversy to it in satisfaction of Its. debt. 'The. testimony 'on behalf of appellant was amply-sufficient : to have sustained a . . .verdict in its behalf on this issue, but the trial Cburt refused to submit this iSsue to-the jury under- appellant's requested instrUction No. 4, which has been copied in- the statement of fads. We think this is reversible error.' Appellant's instruction No. 4 was not covered by any other instruction given by the:trial: court, and -the case must be reversed because of this error. • In view . of the fact that this case must be reManded for a new trial, it is proper to express our views in reference to certain testimony offered on the trial of the_case, in behalf of appellee. . This . testimony was to the effect that his apple crop had. been damaged because appellant had taken his spray rigaway from him, and he was thereby deprived *of spraying his orchard. This testiMony was incompetent and inadrUissible on the trial of this case and should not have been introduced:
Other errors are argued in appellant's! brief, but we do not deem them of sufficient importance to discuss in, this opinion, and they will probably riot occur on a retrial of the case.: Let the judgment be. reversed, and the case:remanded:
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.