Cleary v. Morson

• Decision Date: 29 March 1909
• Docket Number: 13,752
• Citation: 48 So. 817,94 Miss. 278
• Court: Mississippi Supreme Court
• Parties: JOHN CLEARY v. ANDREW A. MORSON

48 So. 817

94 Miss. 278

JOHN CLEARY v. ANDREW A. MORSON

No. 13,752

Supreme Court of Mississippi

March 29, 1909

FROM the circuit court of, first district, Hinds county, HON WILEY H. POTTER, Judge.

Morson appellee, was plaintiff in the court below and Cleary appellant, was defendant there. From a judgment, predicated of a peremptory instruction, in plaintiff's favor defendant appealed to the supreme court. The opinion states the facts.

Affirmed.

Greaves, Easterling & Manship, for appellant.

Conditional sales of personalty are to be considered, under the many decisions of this court, as partaking of the nature of chattel mortgages. Burnley v. Tufts, 66 Miss. 48, 5 So. 627; Dederick v. Wolf, 68 Miss. 500, 9 So. 350; Tufts v. Stone, 70 Miss. 54, 11 So. 792; Ketchum v. Brennan, 53 Miss. 596; Duke v. Shackleford, 56 Miss. 552; Ross v. Pascagoula Ice Co., 72 Miss. 608, 18 So. 364. Wilson had a qualified property interest in the animal, which passed to Cleary by the sale; and Cleary's right to possession could not be disturbed until default in payment. Inasmuch as the debt was not due, Cleary had the right to retain possession until Dec. 15, 1908. Under the circumstances, this replevin suit, instituted in July, 1908, was premature. Dederick v. Wolf, supra; Heflin v. Slay, 78 Ala. 180; Welden v. Witt, 40 So. 126; Leflore v. Miller, 65 Miss. 204, 1 South 99; Newhall v. Kingsberry, 131 Mass. 445; Hardy v. Monroe, 127 Mass. 64; McFarlan v. Farmer, 32 N.H. 391; Lambert v. McLeod, 63 Cal. 162.

A conditional vendee has such rights in the personal property sold him as will enable him to sell or mortgage it to another. Hatch v. Lames, 117 Mass. 324; Currie v. Knapp, 65 N.H. 1; Benjamin on Sales, 269-426; Carpenter v. Scott, 13 R. I. 437.

J. C. Ward, for appellee.

A vendor of personalty sold on credit, who reserves title thereto in himself, can bring an action of replevin to recover such personalty from one who has purchased it from his original vendee, before the maturity of the debt. Zimmerman Lbr. Co. v. Elder (Miss.), 29 So. 456.

The subsequent sale of the horse to Cleary was contrary to the terms of the original contract of conditional sale, and the vendor Morson, had a right to treat the original contract of sale as rescinded and to bring replevin at once to recover the horse. Sims v. Names, 62 Ga. 260; Patridge v. Philbrick, 60 N. II. 536; Whitney v. Connell, 29 Mich. 12; Eaton v. Munroe, 52 Me. 63; Harmark v. Martin, 55 Tenn. 482; Bigelow v. Huntley, 8 Vt. 151.

The giving of a deed of trust or other lien on the property is a breach of the conditional sale and entitles the vendor to bring a replevin to recover it. Machine Co. v. Stewart, 57 Hun (N. Y.), 545.

OPINION

FLETCHER, J.

This is a replevin suit, brought by Morson against Cleary for the recovery of a mare sold conditionally by Morson to one Wilson, and by Wilson sold to Cleary. It appears that Morson and Wilson entered into a contract evidenced by the following memorandum:

"This memoranda of agreement, made and entered into between Andrew A. Morson, party of the first part, and Reuben Wilson, party of the second part, witnesseth: That the said Reuben Wilson, party of the second part, for and in consideration of twenty dollars ($ 20.00) to him in hand paid, the receipt of which is hereby acknowledged, and for the further consideration of $ 40.00 per month, payable monthly, agrees to work for the said Morson, as also to furnish the services of Jim White from the first day of January, A. D. 1908, to the first day of January, 1909. The said A. A. Morson also agrees to give the said Reuben Wilson six (6) acres of land free of rent, and to sell to him one mare, named Alma, for $ 125.00, said amount to be paid on the 15th day of December, 1908. Title to said mare to remain with said Morson until paid. The above $ 20.00 is payable on the 15th day of December, 1908.

"[Signed]

A. A. MORSON.

"REUBEN WILSON."

It will be noted that the animal was not to be paid for until December 15th. Morson testified that at the time of making this contract he was badly in need of labor, and that the mare was sold and the six acres of land furnished as an additional inducement to secure the labor contract. In July Wilson abandoned his contract, sold the mare to Clearly outright, under the pretense that he was the unconditional owner, and fled the country. Thereupon Morson after demand for possession and refusal, instituted this action against Cleary without waiting for the maturity of the...