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not a deed to the land was executed by the vendors; because, if a deed was so executed and accepted by the defendant, then, though no title passed, the defendant could not avail himself of the plea of total failure of consideration, unless there had been an eviction, or its equivalent. Grace vs. McDaniel, 15 Ark. 487; Lewis vs. Davis, 15 Ark. 235. All that is alleged might be true, though a deed was executed. The language of the plea, in this particular, is, especially in the connection in which it is employed, equivocal and insufficient.
Let the judgment be affirmed.
SMITH VS. HOWARD ET AL.
It is error to refuse to permit a defective replevin bond to be amended.
Appeal from Desha Circuit Court.
Hon. JOHN C. MURRAY, Circuit Judge.
GARLAND & RANDOLPH, for appellant.
Mr. Justice COMPTON delivered the opinion of the court. The court below dismissed the plaintiff's action-which was replevin on the ground that no penalty was inserted in the replevin bond, executed by the plaintiff to the sheriff as a prerequisite to the service of the writ; and rendered judgment
Rawlings vs. Paty et al. adms.
against the plaintiff for the value of the property replevied, with damages for the detention thereof. Pending the motion to dismiss, the plaintiff offered to amend by the insertion of a penalty, or the execution of a new bond; but the court refused to allow the amendment, and, in refusing, erred.
The practice of allowing amendments like this is well established in New York, under a statute similar in its provisions to our own. The propriety and convenience of such a practice are obvious. Hawley vs. Bates, 19 Wend. 632.
The judgment must be reversed, and the cause remanded, with instructions to the court below to permit the proposed amendment, and to proceed with the trial of the case on its merits.
RAWLINGS VS. PATY ET AL., ADMS.
In a petition in debt, under the statute, by an administrator, it is unnecessary to make profert of the letters of administration.
Error to Desha Circuit Court.
Hon. JOHN C. MURRAY, Circuit Judge.
GARLAND & RANDOLPH, for the plaintiff.
An ordinary action of assumpsit or debt could not have been
maintained without making profert of the letters of administration (18 Ark. 243). And no reason is perceived why the same necessity does not exist, in this form of action, for the plaintiff's to show their right to sue in the capacity of administrators.
Mr. Justice COMPTON delivered the opinion of the Court. To a petition in debt brought by the administrator and administratrix of David Lewis, deceased, the defendant demurred upon the ground that in the petition the plaintiffs made no profert of their letters of administration.
None was necessary. The proceeding by petition in debt is purely a statutory remedy. The statute prescribes the form of the petition, and then provides that every suit commenced in accordance with the form prescribed, shall be prosecuted to final judgment and execution, in the same manner as if it had been commenced in the ordinary form. Gould's Dig., chap. 130. In this case, the form prescribed was followed, not only substantially, but literally.
Let the judgment be affirmed with costs.
WEBBER VS. PANKEY.
A sale of a horse, with the understanding that the purchaser was to pay for it when he should receive his money for his wages, which would be due at Christmas, and that he could not pay for the horse until his employer paid him; Held, to be a sale on credit until Christmas, and not dependent upon the employer's paying the purchaser his wages.
Webber vs. Pankey.
Appeal from Perry Cicuit Court.
Hon. JOHN J. CLENDENIN, Circuit Judge.
HOLLOWELL, for the appellant.
That the payment for the horse did not depend upon Stout's
paying the defendant for his services as overseer, see Hilliard
on Sales, p. 136, sec. 4; Dana vs. Mason, 4 Verm. 368.
JORDAN, for appellee.
Mr. Justice COMPTON delivered the opinion of the Court.
This suit was commenced before a justice of the peace, in July, 1859, by Webber against Pankey, to recover the price of a horse, which the former had sold to the latter.
At the trial in the Circuit Court, the plaintiff introduced the defendant as a witness, who stated that a short time before Christmas, in the year 1858, he purchased a horse of Webber, for which he agreed to pay eighty-five dollars; that, being at that time the overseer of William Stout, he told Webber the only way he had to pay for the horse was out of the money he should get from Stout as wages for his services as such overseer, which, according to the custom of the country, would be due at the approaching Christmas, and which he expected to receive about the 1st January, 1859; that he could not pay for the horse until Stout paid him; and that he purchased the horse with the understanding that he was to pay for it when he received his money from Stout. It was also in evidence that the defendant had not received the money from Stout, at the time Webber sued him.
On motion of the defendant, the circuit judge charged the jury, in substance, that if they believed from the evidence that the horse was sold to the defendant to be paid for when Stout paid him for his services as overseer, and that Stout had not paid him at the time the suit was commenced, they should find
for the defendant. The jury so found, and judgment was rendered accordingly.
Whether the suit was prematurely brought, is the question presented, and its decision involves a construction of the contract between the parties. Taking the whole statement of the defendant together, as he made it, the legal meaning of the contract is, that the horse was sold on credit until Christmas, 1858, and not until the defendant received payment from Stout; Or, in other words, the accrual of the plaintiff's right of action did not depend upon Stout's paying the defendant, which was a contingency that might never happen. Mr. HILLIARD, in his work on Sales, at page 178, section 4, lays down the rule to be that "where a certain time of credit is fixed, though in connection with other acts or events relating to the vendee, the vendor may bring an action at the expiration of the time, whether such acts have been done, or such events have happened, or not;" citing Dana vs. Mason, 4 Verm. 368; in which the terms of the contract were essentially similar to those in the case before the court. They were as follows: the defendant having contracted to perform a job of work for a third person by a specified time, for which he was to receive payment when the work was done, applies to the plaintiff to purchase goods of him, stating his contract with such third person, and desiring the plaintiff to wait for payment until the job should be completed, and payment made; to which request the plaintiff assented. At the expiration of the time when the work was to be finished, the plaintiff brought suit for the price of the goods, though the work had neither been completed nor paid for. Held that the action was maintainable. The court said: "How are we to understand this contract? Was the plaintiff to lose his goods, if the defendant did not complete his job, or receive his pay therefor, according to his contract with the building committee? The plaintiff's cause of action for the goods, which he sold and delivered to the defendant, did not depend on such a contingency; but it was the understanding that the