Evans v. Wenger

• Decision Date: 20 April 1925
• Docket Number: 24881
• Citation: 139 Miss. 53,103 So. 481
• Court: Mississippi Supreme Court
• Parties: EVANS v. WENGER. [*]

103 So. 481

139 Miss. 53

EVANS v. WENGER. ^[*]

No. 24881

Supreme Court of Mississippi

April 20, 1925

Division B

1. NEW TRIAL. Setting aside verdict and judgment for plaintiff supported by evidence and based on proper instructions held error.

In a replevin suit to recover property traded to another, where it is claimed that the trade was brought about by fraud, where the evidence sustains the plaintiff's contention, and such evidence is believed by the jury and the jury finds a verdict for the plaintiff on proper instructions, it is error to set aside a verdict and judgment in favor of the plaintiff.

2. EXCHANGE OF PROPERTY. Instruction that, if defendant induced trade through fraudulent representations, plaintiff could replevy article traded, not erroneous.

In such case, an instruction that if the plaintiff traded with the defendant and at the time of the trade inquired of defendant whether or not his property was in good condition, and the defendant told plaintiff that it was in good condition and that all it needed was tightening up, new piston rings, and painting, and if the jury believe that defendant made such representations and that same induced plaintiff to make the trade, and that afterwards upon investigation and examination said machine was found not to be in good order but unfit for use, and if the jury believed from the evidence that such representations by the defendant were material and false and induced plaintiff to make the trade, they shall find for the plaintiff, is not an erroneous instruction.

HON. D M. GRAHAM, Judge.

APPEAL from circuit court of Harrison county, HON. D. M. GRAHAM Judge.

Action by B. A. Evans against R. B. Wenger. After trial in justice court, appeal was taken to circuit court, and after verdict for plaintiff, new trial was granted, and, from judgment for defendant on second trial, plaintiff appeals. Reversed, and first judgment reinstated.

Judgment reversed, and judgment reinstated.

Mize & Mize and U. B. Parker, for appellant.

Plaintiff in the court below contended that he had been defrauded in the trade with defendant Wenger, whose fraudulent representations as to the condition of Waterloo Boy tractor traded to the plaintiff annulled the tractor trade between them and gave the plaintiff a legal right to repossess the tractor he had traded to the defendant Wenger, and we contend that the evidence amply supported the contention of the plaintiff in the court below.

We further contend that the issue was properly submitted to the jury by the court below at the March, 1924, term, as shown by the instructions for both parties; that the jury found the issues of fact both as to fraud and deception on the part of defendant Wenger and as to value of the property in favor of the plaintiff, appellant here, and if we are correct in this proposition then the court erred in granting defendant a new trial.

We submit that a person induced by another to a sale or trade and to a parting of their possession by fraudulent representations, as was the case here, is entitled to rescind the contract and to recover in replevin. Gulledge, et al. v. Slayden-Kerksey Woolen Mills, 75 Miss. 297.

If we are correct in our contention that the verdict and judgment in the first trial was proper, then we can hardly be mistaken that the granting of a new trial was error, and that the case should be reversed and judgment entered here for the appellant, plaintiff below, as was done in Ennis v. Yazoo & M. V. R. Co., 118 Miss. 509.

If, however, the court should hold that sufficient error existed to warrant a new trial we insist that it was error for the court to grant peremptory instructions in favor of the defendant, appellee here, and enter judgment as was done in the second trial of the case.

J. F. Galloway and T. M. Evans, for appellee.

That the judgment of the lower court in this case should be sustained is beyond question. The court should have dismissed the case, if for no other reason than the showing made by the evidence of both parties that the value of the Fordson tractor sought to be replevied by an action originating in a justice of the peace court, was of a greater value than two hundred dollars.

Now the burden was on the plaintiff to show that the value of the tractor at the date of the sale was not worth more than two hundred dollars, in order to confer justice court jurisdiction. There was no effect made to show that the tractor had depreciated to an amount less than two hundred dollars.

The law is well settled in Mississippi, that a party cannot reduce his claim below its value in order to vest jurisdiction in a justice court. A writ of seizure issued for more than one hundred and fifty dollars, returnable before a justice of the peace, is void. Breckenridge v. Johnson, 57 Miss. 371. And a plaintiff cannot divide the account, though composed of various items so as to bring it within the jurisdiction of a justice court. Grayson v. Williams, Walker 298, 12 Am. Dec. 568.

Where the plaintiff voluntarily enters credit on his note so as to bring it within the jurisdiction of the justice of the peace court, the court acquired no jurisdiction. Herbert v. Spurlock, 26 Miss. 180. See, also, Schofield v. Penson, 26 Miss. 402; Askew v. Askew, 49 Miss. 301.

It is perfectly evident that the value of the property involved here, sought to be replevied, was greatly in excess of two hundred dollars and was purposely under-valued in order to get a hearing before a justice of the peace, where he could get a trial on five days' notice, and not be delayed until the next term of the circuit court.

The sole grounds advanced by counsel for appellant as a basis of reversal of the lower court is that appellant was defrauded in the trade by the appellee. Fraud cannot be assumed; it must be specifically charged, and proved. See Vincent v. Corbett, 47 So. 641.

It is clear that appellee declined to warrant the car unless at least one hundred fifty dollars worth of parts and work were put on it, and in answering to this warning, Evans assumed the risk of quality and condition of the tractor in order to save himself one hundred and fifty dollars, which Wenger was demanding as boot if he had to make a guaranty. This was an express warning. It is not contended by appellant that there was an express warranty in any respect, and the case of Gulledge v. Woolen Mills, 75 Miss. 297, is no authority for appellant.

A second-hand machine is "res ipsa loquiter" and of itself is warning to a would-be purchaser. Any rational man knows second-hand machines have many parts which are worn and weakened and in need of repairs, that at any time more or less trouble may be expected from any part of it. 24 R. C. L. 189, article 461; Job & Co. v. Lumber Co. (C. C. A.), 255 F. 311, 3 A. L. R. 619; Barnard v. Kellog, 19 L.Ed. 987. See, also, Smith v. Bolster, 125 Pa. 1022; Morley v. Mfg. Co., 196 Mass. 257; Warren v. Walker Auto Co., 99 N.Y.S. 396; Bay v. Motor Co., 194 Mich. 222; White v. Haynesworth Motor Co., 112 Wash. 440; Mull v. Touchberry, 112 S.C. 422; Ray Motor Co. v. Stanyan, 123 Me. 346, citing Benjamin on Sales (4 Am. Ed.), 766; 5 L. R. A. (N. S.) 180, 24 R. C. L. 180.

The rule announced in the preceding authorities is also the rule in Mississippi. Otts v. Alderson, 10 S. & M. 476; Joslin v. Caughlin, 26 Miss. 138; Cogin v. Frisbie, 36 Miss. 185; Lindsay v. Lindsay, 34 Miss. 432; Chase Threshing Machine Co. v. McCoy, 72 So. 139; Oswald v. McGhee, 28 Miss. 350; Farrin v. Dameron, 99 Md. 323, 105 A. S. R. 297.

If Evans had a right of action against Wenger, he has selected the wrong one. Under the circumstances he might have rejected the car and entered a suit for damages; or kept the car and recovered the difference in value of the car called for in the contract, and the one actually delivered. Replevin is certainly not a remedy intended to provide a...