Fitzgerald v. American Mfg. Co.

• Decision Date: 04 June 1917
• Docket Number: 19318
• Citation: 114 Miss. 580,75 So. 440
• Court: Mississippi Supreme Court
• Parties: FITZGERALD v. AMERICAN MFG. CO

75 So. 440

114 Miss. 580

FITZGERALD v. AMERICAN MFG. CO

No. 19318

Supreme Court of Mississippi

June 4, 1917

Division A

APPEAL from the circuit court of Coahoma county, HON. W. A. ALCORN Jr., Judge

Suit by the American Manufacturing Company against E. P. FitzGerald. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed in part and affirmed in part and remanded.

Maynard & FitzGerald, for appellant.

The description of the property in the contract of sale is void. Allen v. Dicken, 63 Miss. 91; Nicholson et al v. Karpe, 58 Miss. 1. The last mentioned decision is so close in point that the court is specially directed to the description therein. Kelly v. Reid, 57 Miss. 89. The description in the affidavit of replevin (Rec. p. 4), writ of replevin and return of the sheriff thereon are void: (a) Because of insufficient description; (b) because unvalued as required by the statute.

In support of (a) we refer the court to the cases cited above in regard to the description of the property contained in the contract of sale.

In support of (b) we respectfully refer this court to section 4214 of the Code of Mississippi of 1906, subdivision "B" thereof.

Undoubtedly the reason for the passage and enactment into a law of section 4784, Code 1906 was the one dealing with a trader might rest on this statute unless he had actual constructive notice of the ownership by another person of the property stock, money and choses in action used or acquired in such business. Take the instant concrete case; Goodman applied for the rental of a space in the appellant's pool room; he shows the fixtures, counters and other appliances here in controversy; he assures appellant that he is the owner of all of these fixtures and appliances and that therefore appellant has something to look to for such rental, credit, etc., as he may extend to Goodman. Relying upon the statute of 4784, Code 1906, and the possession of Goodman of the articles in question, and believing that he has a lien on said article for his rent as landlord, the appellant allowed Goodman to set up his fixtures and gives him credit for rents.

When the lien for rent is attempted to be imposed appellee comes with a void contract of sale and says that it owns the property, and not Goodman. We submit that in order to meet the law the contract of sale which was held by appellee must be good and valid and binding in order to defeat the lien of appellant for his rent.

If the description in the contract of sale is void, then the whole contract falls to the ground and it is not constructive notice to FitzGerald, or any other creditor, that appellee is the owner or has any interest in the property of Goodman. It is probable that counsel for appellee will cite the cases of Stone v. Tufts, 70 Miss. , and Brunswick v. Murphy, 89 Miss. 264. Neither of these cases is directly in point. The case of Tufts v. Stone, supra, is not in point because it is not contended there that there is any bad description in the contract of sale.

The contract of sale in that case, which is exactly similar to this, was considered a mortgage. We call the court's attention specially in that case (Tufts v. Stone, supra) to the remark of the court, on page 59, as follows: "While the trader must unite in himself title and possession of property used in his business, he may surely encumber the same by mortgage, and, with the instrument acknowledged and recorded, his mortgagee must not be stripped of his rights under the mortgage. See Dodds v. Pratt, 64 Miss." In that sentence the court upholds our contention in this case to-wit: The trader must unite in himself the title to the property which he uses and acquires in his business; that if he desires to encumber or mortgage any of his property it must be done by a good and valid mortgage acknowledged and recorded. The case of Brunswick v. Murphy, supra, is not in point because the renter in that case was not a trader, and the question did not arise in the case.

The court and the legislators have attempted by every device within power to protect persons dealing with traders. It is well known that if one goes into a store to sell or buy from a trader he can but look at the stock of goods, fixtures and other articles in the store for a basis of credit, then if there is no valid mortgage of any of the assets or property on record, surely in view of section 4784 of the Code of 1906, he may consider himself safe in advancing credit to the amount of the value of the property, stock, fixtures, etc., used and acquired in the business of the renter.

Holding the above view, it seems to us that the court below has erred in admitting the mortgage or contract of sale as evidence in this case, and without such rightful admission in evidence the case of appellee falls to the ground.

E. M. Yerger and D. A Scott, for appellee.

Under the pleadings, in this case, the only questions involved are whether or not the appellee had title to the property seized by it, at the time the writ of replevin was issued and executed, and whether or not it was necessary for it to pay to Mr. FitzGerald three hundred and twenty-five dollars rent claimed by him, as owing by O'Neal Goodman, before it had the right to take possession of the property.

The evidence shown conclusively that the appellee was the owner of the property in question, it being admitted by Goodman that, the title thereto was retained by the American Manufacturing Company, until the purchase price was paid, this also being shown by the contract of sale, and by the notes which were introduced in evidence.

This being undisputed, did Mr. FitzGerald, a mere unsecured creditor, have the right to retain possession of this property, until he was paid the rent on the leased premises, upon which the property was placed by Goodman.

He seeks to invoke the aid of section 4784 of the Code of Mississippi, 1906, which is as follows. If a person shall transact business, as a trader, or otherwise, with the addition of the words "agent," "factor" "or & Co." or like words, and fail to disclose the name of his principal or partner, by a sign in letters, easy to be read, placed conspicuously at the house where such business is transacted, or if any person shall transact business in his own name, without any such addition, all the property, stock, money and choses in action, used or acquired in such business shall, as to creditors of any such person be liable for his debts, and be in...