{ "id": 1575064, "name": "Troxler v. Wilson", "name_abbreviation": "Troxler v. Wilson", "decision_date": "1918-04-01", "docket_number": "", "first_page": "216", "last_page": "219", "citations": [ { "type": "official", "cite": "133 Ark. 216" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "76 Iowa 47", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2063548 ], "opinion_index": -1, "case_paths": [ "/iowa/76/0047-01" ] }, { "cite": "71 Conn. 479", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 767096 ], "opinion_index": -1, "case_paths": [ "/conn/71/0479-01" ] }, { "cite": "111 U. S. 472", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3506231 ], "opinion_index": -1, "case_paths": [ "/us/111/0472-01" ] }, { "cite": "63 Ark., 254", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722073 ], "opinion_index": -1, "case_paths": [ "/ark/63/0254-01" ] }, { "cite": "83 Ark. 545", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1527180 ], "opinion_index": -1, "case_paths": [ "/ark/83/0545-01" ] }, { "cite": "114 Ark. 14", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1536306 ], "opinion_index": -1, "case_paths": [ "/ark/114/0014-01" ] }, { "cite": "168 U. S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6136182 ], "opinion_index": -1, "case_paths": [ "/us/168/0001-01" ] }, { "cite": "14 Ark. 166", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1862735 ], "opinion_index": -1, "case_paths": [ "/ark/14/0166-01" ] }, { "cite": "7 Wis. 523", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8712818 ], "opinion_index": -1, "case_paths": [ "/wis/7/0523-01" ] }, { "cite": "1 Wyo. 45", "category": "reporters:state", "reporter": "Wyo.", "case_ids": [ 5271237 ], "opinion_index": -1, "case_paths": [ "/wyo/1/0045-01" ] }, { "cite": "92 Fed. 838", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6752279 ], "opinion_index": -1, "case_paths": [ "/f/92/0838-01" ] }, { "cite": "7 Ark. 333", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727421 ], "opinion_index": -1, "case_paths": [ "/ark/7/0333-01" ] }, { "cite": "12 Ark. 167", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "18 S. W. 940", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "39 S. E. 930", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": -1 }, { "cite": "4 Hun. 166", "category": "reporters:state", "reporter": "Hun.", "opinion_index": -1 }, { "cite": "18 Pick 95", "category": "reporters:state", "reporter": "Pick.", "case_ids": [ 2025366 ], "opinion_index": -1, "case_paths": [ "/mass/35/0095-01" ] }, { "cite": "34 N. W. 291", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": -1 }, { "cite": "96 Cal. 84", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2338720 ], "opinion_index": 0, "case_paths": [ "/cal/96/0084-01" ] }, { "cite": "114 Pa. 191", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 550057 ], "opinion_index": 0, "case_paths": [ "/pa/114/0191-01" ] }, { "cite": "16 Mo. 419", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 8855065 ], "opinion_index": 0, "case_paths": [ "/mo/16/0419-01" ] }, { "cite": "97 Ark. 450", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1318842 ], "opinion_index": 0, "case_paths": [ "/ark/97/0450-01" ] }, { "cite": "96 Ark. 541", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 } ], "analysis": { "cardinality": 423, "char_count": 7350, "ocr_confidence": 0.497, "pagerank": { "raw": 4.518461695170957e-08, "percentile": 0.2829475772525734 }, "sha256": "93b228f6c4d69f894824e726559290ff2a9249aff3dbf153f298bf2cf809b8da", "simhash": "1:c6dea38d3834bc0d", "word_count": 1303 }, "last_updated": "2023-07-14T15:39:19.700480+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Troxler v. Wilson." ], "opinions": [ { "text": "HUMPHREYS, J.\nAppellee, W. H. Wilson, instituted suit against appellants, Joe Troxler and E. L. Dixon, in the Randolph circuit court on a promissory note for $200.00 and interest, executed on the 8th day of July, 1916, and due on November 15, 1916.\nAppellants pleaded a want of consideration in that appellee induced appellant Troxler to buy a team, wagon and harness upon the guarantee that the horses were sound, and that the gray horse purchased was not even eleven years old; whereas, the bay or black horse had pneumonia at the time, of which it soon died, and the gray horse was twenty-four years of age.\nAppellee demurred to W. L. Dickson\u2019s answer on the ground that he was surety for Troxler and could not plead as a defense misrepresentations, if any, made by appellee to Troxler; and filed a plea of res adjudicaba to the answer of Troxler.\nThe cause was heard by the court upon the pleading and evidence introduced in support of the plea of res adjudicaba. The demurrer and plea were sustained and judgment rendered against appellants, from which an appeal has been prosecuted to this court.\nThe substance of the evidence introduced in support of the plea of res adjudicaba disclosed that a short time after the black horse died, Troxler brought a suit in replevin in a magistrate\u2019s court for the recovery of the note constituting the basis of this action. The note had been placed in the Eandolph County Bank for safe keeping, and the bank was made a defendant in the replevin suit. Appellant, Dickson, who had signed the note as surety for Troxler, also became surety on the replevin bond. It was stated in the affidavit for replevin that the note was executed in part payment for a balance due on the team, wagon and harness, and was without consideration because misrepresentations were made as to the soundness of the bay horse and the age of the gray horse. This suit was tried in the magistrate\u2019s court and judgment rendered in favor of appellant Troxler and he secured a return of the note. Appellee appealed the case to the circuit court and demurred to Troxler\u2019s complaint or affidavit. The court sustained the demurrer to the affidavit and dismissed the replevin suit. An appeal was prayed by Troxler but was never prosecuted to the Supreme Court.\nIt is insisted by appellants that the court erred in sustaining the demurrer to Dickson\u2019s answer and the plea of res ad judicata to Troxler\u2019s answer to the suit on the note. Appellee insists that even if the court erred in sustaining the demurrer to Dickson\u2019s answer no prejudice could result to him for the reason that he signed the bond in replevin and is as much bound by the former adjudication as Troxler. The main question, then, to be determined in this suit is whether or not appellants were precluded from pleading a failure of consideration for the note because they prosecuted a suit in replevin for the recovery of the note on account of a failure of consideration therefor. The solution of the question must depend upon whether the issue in the replevin suit and the issue in the instant case were identical. If replevin was not a proper remedy and would not lie for,the recovery of the note, then no issue on the merits could have been joined between the parties in that case. This court has said that \u201cThe true test of whether or not a particular point, question or right has been concluded by a former suit and judgment is whether such point, question or right was distinctly put in issue, or should have been put in issue, and was directly determined by such former suit or judgment.\u201d Fourche River Lumber Co. v. Walker, 96 Ark. 541; Pulaski County v. Hill, 97 Ark. 450.\nWhen Troxler discovered that the horses had been misrepresented, three remedies only were open to him: Suit for rescission of the contract and cancellation of the note; suit for damages on account of fraud and deceit; or to wait until such suit was brought on the note and plead total or partial failure of consideration.\nThe note or evidence of indebtedness passed by delivery to appellee Wilson when the trade was made and he was entitled to retain the possession thereof until the contract was rescinded or the note paid. The failure of consideration, which is the issue in the instant case, could not have been litigated in the replevin suit because appellants had no right to bring a suit for the possession of the note.\nThe remaining question to be determined is whether Dickson, as surety on the note, can join Troxler, the principal, in a plea of failure of consideration for the note on account of a breach of warranty made to Troxler as to the soundness of the horses. It is laid down as a principal in Stearns on Suretyship, second edition, page T48, that \u2018 \u2018 Where the contract between the principal and creditor fails by reason of a want of consideration, the collateral suretyship contract also fails.\u201d The text is supported by the following cases: Sawyer v. Chambers, 43 Barber 622; Scroggin v. Holland, 16 Mo. 419; Gunnis v. Weigley, 114 Pa. 191; Mitchum v. Richardson, 3 Strobhart Law, (S. C.) 254; Stockton Savings & Loan Co. v. Giddings, 96 Cal. 84.\nThe court therefore erred in sustaining the demurrer to Dickson\u2019s part of the answer and also in sustaining the plea of res adjudicada to Troxler\u2019s answer.\nThe judgment is reversed and the cause remanded for further proceedings not contrary to this opinion.", "type": "majority", "author": "HUMPHREYS, J." } ], "attorneys": [ "S. A. D. Eaton, for appellant, Jerry Mulloy, of counsel.", "W. L. Pope and T. W. Campbell, for appellee." ], "corrections": "", "head_matter": "Troxler v. Wilson.\nOpinion delivered April 1, 1918.\n1. Sales \u2014 horses\u2014misrepresentation\u2014remedy op buyer. \u2014 Where A. purchased certain horses from B. and it developed that the horses were not, as represented, where A. gave a note for the purchase price, three remedies are open to him: suit for rescission of the contract and cancellation of the note; suit for damages on account of fraud and deceit; or to wait until suit was brought on the- note and plead total or partial failure of consideration.\n2. Sales \u2014 note for purchase price \u2014 failure of consideration\u2014 replevin. \u2014 Where a note is given for the purchase price of certain horses, and it developed that the horses were not as represented, the buyer can not bring replevin for the note.\n3. Principal and surety \u2014 failure op consideration \u2014 discharge of surety. \u2014 Where the contract between the principal and creditor fails by reason of a want of consideration, the collateral surety-ship contract also fails.\nAppeal from Randolph Circuit Court; J. B. Baker, Judge;\nreversed.\nS. A. D. Eaton, for appellant, Jerry Mulloy, of counsel.\nIt was error to sustain the demurrer to Dickinson\u2019s answer and to Troxler\u2019s plea of res adjudicata. 34 N. W. 291; 18 Pick 95; 4 Hun. 166; 39 S. E. 930; 18 S. W. 940; Pomeroy on Code Remedies, 347; 12 Ark. 167; 55 Id. 18; 23 Cyc. 1155; 2 Black on Judgments, 725, 715, 614; 23 Cyc. 1216.\nW. L. Pope and T. W. Campbell, for appellee.\n1. The demurrer was properly sustained to Dickson\u2019s answer. He was but a surety on the note, 7 Ark. 333; 100 Ya. 709; 92 Fed. 838; 1 Wyo. 45; 7 Wis. 523.\n2. The plea of res adjudicaba was properly sustained. 14 Ark. 166; 68 Id. 320. See also, 168 U. S. 1; 167 Id. 371; 124 Id. 225; 114 Ark. 14; 108 Id. 574; 91 Id. 394; 20 Id. 85; 12 Id. 164; 76 Id. 423, etc.; 83 Ark. 545.\n3. A decision on general is -an (adjudication upon the merits and final. 63 Ark., 254; 111 U. S. 472; 71 Conn. 479; 76 Iowa 47; 97' Cal. 125; 2 Black on Judgments, \u00a7 709." }, "file_name": "0216-01", "first_page_order": 240, "last_page_order": 243 }