Burnley v. Tufts

• Decision Date: 04 March 1889
• Court: Mississippi Supreme Court
• Parties: M. D. BURNEY v. J. W. TUFTS

5 So. 627

66 Miss. 48

M. D. BURNEY v. J. W. TUFTS

Supreme Court of Mississippi

March 4, 1889

APPEAL from the circuit court of Copiah county, HON. T. J. WHARTON Judge.

The agreed statement of facts shows the following case: The appellee, J. W. Tufts, sold to appellant, Burnley, a soda-water apparatus, taking therefor the several notes of the latter, due at intervals of thirty days consecutively. The notes, which are all similar, contain the stipulation that the title to the property shall remain in J. W. Tufts the seller, until all the notes are paid, and that he shall have the right, upon the non-payment at maturity of either of the notes, to retake possession of the property.

After several of the notes had matured and been paid, the apparatus was totally destroyed by fire, without any fault on the part of appellant. The latter had exclusive control and use of the property from the time of its purchase until it was burned. He refused to pay the subsequently maturing notes, claiming that the title was still in appellee, and that the loss should, therefore, be borne by appellee, as it occurred without any fault on the part of appellant.

The cause was submitted to the trial judge, without the intervention of a jury, and resulted in a judgment for the plaintiff.

Defendant appeals.

affirmed.

H. C Conn, for appellant.

The contract is a conditional agreement on the part of Tufts to sell to Burnley certain property, and on the part of Burnley to pay certain sums of money in installments, and on paying off all the sums agreed to be paid, both agree that the property shall be the property of Burnley; but until payment it belongs to Tufts. Burnley held the possession, not as owner, but for Tufts, until the sale should be completed, and the title pass to Burnley. Thus the latter became the mere custodian or bailee.

The suit is not against appellant as bailee for failure to redeliver the property, but is a suit for the purchase-money, as for a completed sale. His contract is a conditional one. He is not the owner until payment. Payment and ownership are dependent one upon the other. This is the express contract.

Such contracts are valid, and have been frequently upheld. Ketchum v. Brennan, 53 Miss. 596; Duke v. Shackelford, 56 Miss. 552; Leflore v. Miller, 64 Miss. 204. Mere delivery does not in such cases make a complete sale, and the property does not pass to the purchaser. The latter is a mere bailee. Heinbockle v. Zugbaum, 51 Am. Rep. 62, and cases cited; Benj. Sales 424. It is the English rule, that "in contracts in which performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility arising from the perishing of the person or thing shall excuse non-performance." The destruction of the apparatus, without fault of Burnley, absolved him from liability. Performance on both sides became impossible.

H. B. Mayes, for appellee.

After delivery of the property and receipt of the notes, notwithstanding the retention of the title, Tufts was but a mortgagee.

A mortgagee is one who holds the legal title to property of another as security for a debt. Dollahile v. Orne, 2 S. & M. 592; Strickland v. Kirk, 51 Miss. 795; Turner v. Hicks, 4 S. & M. 300; Lindsey v. Bates, 42 Miss. 400; Meigs Rep. (Tenn.) 56. The retention of title by the seller is in effect the same as conveying title and taking security by mortgage. See foregoing authorities.

Where a party by contract engages to do an act, and does not provide in it against contingencies to exempt himself from liability in certain events--where the contract is absolute and general--he is not excused from performance by an inevitable accident, or other contingency not in his...