Brewer v. Universal Credit Co.

• Decision Date: 12 February 1940
• Docket Number: 33927
• Court: Mississippi Supreme Court
• Parties: BREWER v. UNIVERSAL CREDIT CO. et al

192 So. 902

191 Miss. 183

BREWER v. UNIVERSAL CREDIT CO. et al

No. 33927

Supreme Court of Mississippi, Division A

February 12, 1940

Suggestion Of Error Overruled March 25, 1940.

APPEAL from circuit court Montgomery county HON. JOHN F. ALLEN Judge.

Action by A. B. Brewer against University Credit Company and another for damages for wrongful sale of automobile. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

J. W Conger, of Winona, for appellant.

The consideration was adequate; and if any additional consideration was necessary, it was found in the acts of the parties.

Wright v. Mary Galloway Home, 187 So. 752, 186 Miss. 197; Pritchard v. Hall, 175 Miss. 428, 167 So. 629; Magee v. Catchings, 33 Miss. 672; Shaw v. Philbrick, 129 Me. 259, 161 A. 423, 74 A.L.R. 290; Moore v. McKinney, 83 Me. 80, 21 A. 749; Case note in 74 A.L.R. 290; McLeod Nash Motors v. Commercial Credit Co., 187 Minn. 452, 246 N.W. 17; Root v. Republic Acceptance Corp. (Pa.), 123 A. 650, case note in 87 A.L.R. 309; Odineal v. Barry, 24 Miss. 9; Justice Story on Prom. Notes, sec. 186; Merrell v. Legrand, 1 How. (Miss.), 150; Miller v. Bank, 131 Miss. 55, 95 So. 129; 13 C. J. 315, 316, sec. 150; Boyd v. Kelley, 111 Miss. 629, 71 So. 897; Stanley v. Sumrall, 167 Miss. 714, 147 So. 406; Page v. Sadler, 134 Miss. 459, 99 So. 8.

The appellant gave up as a consideration, as he stated, his right to require the appellee to replevy; he gave up the use of the automobile; he agreed to pay the storage; he waived all legal proceedings; the claim was not a doubtful one; it was one then and there understood to be preexisting; the appellant performed every part of the agreement that he bound himself to perform; and regardless of the fact that he paid out no actual money as a consideration to the appellee for the delay or forbearance in instituting the legal proceedings, he both promised and performed every part of the agreement. He agreed to pay all expenses.

Loss, or the danger of loss to the creditor, is a consideration as sufficient as benefit to the debtor.

Hall v. Clopton, 56 Miss. 555.

There was unquestionably an unjustifiable and wrongful conversion of the plantiff's property, as shown by the proof. The automobile was never delivered to the Universal Credit Co., and whether Ellis Motor Company is considered a bailee for hire or a gratuitous bailee, the rule would be that he and the Universal both would be liable in conversion of the property.

V. D. Rowe and H. T. Holmes, both of Winona, for appellee.

Appellees are in the position of admitting that the agreement to wait on appellant for thirty days for payment of the past due installments was made, but appellees submit that if such agreement were made, it was of no effect and not binding on appellees because it was not supported by any consideration, and consequently, appellee, Universal Credit Company, was clearly within its rights when it sold the car to Ellis Motor Company in violation of the alleged agreement, and appellees are therefore not liable to appellant for any amount.

The case at bar is not one where an additional or new consideration is paid for the changing or modification or extension of a written contract; nor is it one where a part of the delinquent account was paid at the time of the modification as a consideration therefor; but the case at bar is one in which the only possible consideration shown for the modification of the contract is a promise by appellant to do what he was already under obligation and duty to do.

Appellees submit that a new or additional consideration was necessary to make the modification or extension, or it may be called indulgence on the part of appellee, of the contract binding on the appellees and that the law in Mississippi is well settled on this point in appellees' favor.

Edrington et al. v. Stephens, 148 Miss. 583, 114 So. 387; Thompson v. Wynne, 127 Miss. 773, 90 So. 482; Pritchard v. Hall, 175 Miss. 588, 167 So. 629; First Nat. Bank of Gulfport v. Rau, 146 Miss. 520, 112 So. 688; 12 Am. Jur., p. 990, par. 412, p. 995, par. 416; Tsemelis v. Sinton State Bank, 85 A.L.R. 319, 53 S.W.2d 461; 1 A. L. I, Restatement of the Law of Contracts, p. 81, par, 75, and p. 88; Bowers v. Ground (Texas), 115 S.W. 1142; Monk v. G. M. A. C. (Ga.), 193 S.E. 466.

OPINION

Griffith, J.

On July 21, 1938, appellant purchased an automobile, paying cash $ 165, and for the balance of the purchase money, amounting to $ 396, he executed an installment purchase money conditional sales contract by which he agreed to pay the balance in monthly installments of $ 33 each, title retained until all payments made. This contract was assigned to appellee, Credit Company. After paying the August and September installments, appellant, being temporarily out of employment, became in arrears in the October and November installments. The Credit Company thereupon demanded possession of the vehicle, and there was an agreement made on November 24, 1938, between the Credit Company and appellant, to which agreement appellee Ellis was a party, that the automobile should be stored with the latter in Winona, in this State, for thirty days, appellant to pay the storage thereon, and that appellant should have that time within which to pay the two delinquent installments and thereupon receive his car. The car was at once stored under that agreement.

Within the thirty days, to-wit, on December 13, 1938, appellant appeared with the $ 66 for the two installments then due and tendered same, but was informed, and the fact was, that Ellis had sold at private sale and delivered the automobile to a Miss Jacks, Ellis claiming that he had bought it outright from the Credit Company; and Ellis, as well as the Credit Company, declined to do anything whatever about a redelivery of the car to appellant or to recognize that appellant had any rights in the premises whatever. Appellant thereupon instituted an action of replevin against Miss Jacks, and the sheriff took possession of the automobile under the writ, and pending the giving of the statutory bond by the plaintiff in replevin, the sheriff stored the property in the store-rooms of appellee Ellis. Within the time allowed by law, appellant, as plaintiff in the replevin action, gave the replevin bond in the sum of $ 1, 000, being double the value of the property, but appellee Ellis again refused to surrender possession until appellant had paid a bill of some fourteen dollars for repairs and supplies, some of which had been supplied to or for Miss Jacks while the automobile was in her use. None of these repairs had been made with appellant's consent, and most of them were unnecessary. An illustration of this may be seen in the fact that one item was "washing & polishing $ 3.00."

The car had been sold by Ellis to Miss Jacks for $ 350, part of which had been paid in cash, but when Miss Jacks discovered that she had bought a lawsuit and learned the accompanying facts, she immediately repudiated the transaction; her attitude was recognized by Ellis, and she received a return of what she had paid with a cancellation of any further obligations. In the replevin suit, appellee Credit Company thereafter appeared as claimant under its conditional sales contract, and there was a judgment rendered, fixing the value of the car at $ 500, and the claimant's interest therein at the balance due by appellant of $ 330 for the recovery of which, in the event the car should not be turned over to the claimant, the judgment was against appellant and his sureties on the replevin bond.

Soon after appellant regained possession of his automobile under the replevin bond, he instituted the present action for damages against Ellis and against the Credit...