First National Bank of Greenville v. Cook Carriage Co.

• Decision Date: 20 March 1893
• Citation: 12 So. 598,70 Miss. 587
• Court: Mississippi Supreme Court
• Parties: FIRST NATIONAL BANK OF GREENVILLE ET AL. v. COOK CARRIAGE CO

12 So. 598

70 Miss. 587

FIRST NATIONAL BANK OF GREENVILLE ET AL. v. COOK CARRIAGE CO

Supreme Court of Mississippi

March 20, 1893

March 1893

FROM the circuit court of Washington county, HON. R. W WILLIAMSON, Judge.

Appellee is a wholesale dealer in carriages and other vehicles, and in 1891, through its agent, sold and shipped to J. C. Head &amp Co., retail dealers in Greenville, Miss. a delivery-wagon and rockaway, the title to which is involved in this action. The sale and shipment were made pursuant to a written contract signed by J. C. Head & Co., which, after describing the two vehicles, contains the following stipulation: "The subscribers agree to settle promptly, by note or bill of exchange on Cincinnati or New York, on receipt of bill of lading, in accordance with the following terms: 50 and 10 off 4 mos., and 5 per cent. more off for cash in 10 days from date of shipment." The vehicles were received in due course, but the purchasers failed to pay the cash in ten days, or to execute notes or give their acceptances for the price as agreed, and they have never complied with this part of the contract, though frequently requested to do so by appellee. The wagon was sold by Head & Co., in the usual course of business, to Dan Head, and the rockaway to the First National Bank of Greenville, both purchases being for value without notice. Subsequently, appellee made demand on the bank for the vehicles, and the bank, while admitting possession, refused to deliver them. Whereupon, appellee brought this action of replevin. Dan Head interposed a claim for the wagon, and the whole case was, by agreement, submitted to the court without a jury, and judgment was rendered for the plaintiff on both issues. The bank and Dan Head have appealed.

Reversed.

Jayne & Watson, for appellants.

1. It is not denied that appellants were innocent purchasers for value of the vehicles. The contract did not create a conditional sale. The only condition named was that the subscriber agreed to settle promptly by note or draft, or to pay cash within ten days. The purchasers had the option of paying the money or giving the note. The vendor nowhere retained title.

2. Appellee was a wholesale manufacturer of carriages, and knew that its vendee, J. C. Head & Co., were retail dealers in them, and that these vehicles were purchased for sale. Appellants were innocent purchasers. As between wholesale and retail dealers, secret liens or reservations of title in conditional sales will not be permitted, as they operate as a fraud on the purchasing public. 109 Ind. 31; 6 Daly, 305; 31 Barb., 650; 4 N.Y. 518; Benjamin on Sales, § 319; 58 Ala. 165.

Phelps & Larkin, for appellee.

The condition upon which title was to vest in the purchasers was never performed, and appellee had the right to reclaim its goods. The fact that notes were exacted of the purchasers upon delivery, as the condition of the sale, does not render it less a conditional sale....