George v. Hewlette

• Citation: 12 So. 855,70 Miss. 1
• Court: United States State Supreme Court of Mississippi
• Decision Date: 17 November 1890
• Parties: W. W. GEORGE, EXECUTOR OF S. A. RAGSDALE, v. SALLIE A. HEWLETT

12 So. 855

70 Miss. 1

W. W. GEORGE, EXECUTOR OF S. A. RAGSDALE, v. SALLIE A. HEWLETT

Supreme Court of Mississippi

November 17, 1890

FROM the circuit court of Lauderdale county, HON. S. H. TERRAL Judge.

The facts are stated in the opinion. Plaintiff had judgment in the court below. Motion for new trial overruled. Defendant appeals.

Judgment affirmed.

Walker & Hall, for appellant.

1. The court erred in excluding the evidence offered to show the destruction of the property by fire without the defendant's fault. Whitfield v. Whitfield, 44 Miss. 254; Irion v. Hume, 50 Ib., 419; Atkinson v. Foxworth, 53 Ib., 741. These cases hold that it is a good defense to establish the loss or destruction of property without the fault of the person having custody thereof.

Under the ruling of the court below, it would be perilous to either party to a suit to give bond for the forthcoming of property. It is to the interest of all concerned that one of the parties should give bond for property in replevin. The law encourages this. The party giving bond should not be placed in any worse attitude than the sheriff should the property remain in his hands. It will not be contended that the sheriff would be liable for property destroyed, without his fault, while in his custody.

2. If it be conceded that a defendant in replevin, having no shadow of right to the property, acts at his peril in giving bond for its forthcoming, yet no such case is presented here, for Mrs. Ragsdale was in no sense a mala fide holder. The property came lawfully into her possession, and she advanced the storage charges thereon. It was for plaintiff to relieve it from the burden of such charges by showing payment.

3. Plaintiff's minority would, at most, only make the sale to defendant voidable, and, until it was avoided, the possession of Mrs. Ragsdale was legal.

Mala fide holding could not be predicated of the facts of this case. Defendant had the legal as well as moral right to bond the property and litigate with plaintiff concerning it.

Witherspoon & Witherspoon and E. H. Dial for appellee.

The testimony offered by defendant was properly excluded. A replevin bond requires the return of property in as good condition as when taken. Wells on Replevin, § 422.

Destruction of the property does not shield the defendant if possession was wrongfully acquired, in violation of trust, or by fraud or force, or when characterized by tort. Wells on Replevin §§ 455, 600; Sedgwick on Damages, 500; De Thomas v. Weatherley, 44 Am. R., 545 s.c. 61 Cal. 42.

There is a difference between the death of animals and the destruction of inanimate property in such cases. If an animal should die without fault of him who has it in possession, the same result would have followed if it had been in the possession of the owner. But this does not follow where property, bonded by a defendant, is destroyed by fire. In this case, if the defendant had permitted the property to be taken from the hotel, it would not have been destroyed.

The case of Whitfield v. Whitfield, 44 Miss. 254, relied on by appellant, was an action of detinue.

OPINION

COOPER, J.

This is an action of replevin, brought by the appellee against the testatrix of appellant, to recover possession of numerous articles of personal property, among which were a piano piano stool and cover, a sewing-machine and a diamond ring. The articles, other than those specifically named, were delivered to the plaintiff upon her entering into bond, conditioned as the law directs. The officer failed to find the diamond ring, and, upon his return to that effect, the plaintiff counted in trover for said ring, under § 2619, code 1880.

The piano, stool and cover and the sewing-machine were redelivered to the defendant upon her entering into the statutory bond, with sureties, for the forthcoming of the same to answer to such judgment as might be rendered. The plaintiff, having shown title to the property, secured a verdict and judgment for the property or its alternative value as assessed by the jury.

The following facts give rise to the errors assigned:

Mrs. Hewlett is the daughter of the testatrix, and the property sued for was, during her girlhood or at her marriage, presented to her by her father or mother. Soon after her marriage, and while she resided in Birmingham, Ala., she was adjudged insane, and committed to the lunatic asylum of that state. The piano and sewing-machine were left in storage in Birmingham during the time of Mrs. Hewlett's insanity. Upon restoration to sanity, she returned to the home of her parents, at Meridian, and directions were sent to the warehouseman to forward the articles to Meridian, and they were accordingly shipped, but were sent to Mrs. Ragsdale, the testatrix, instead of to Mrs. Hewlett. The reason given by the warehouseman for sending them to Mrs. Ragsdale was that he feared he would not receive his charges for storage if sent to Mrs. Hewlett. Mrs. Ragsdale paid these charges, something over six dollars, and the piano and machine were placed in Mrs. Ragsdale's house, of which Mrs. Hewlett was then an inmate.

Subsequently the mother and daughter disagreed, and the daughter left her mother's house. At or soon after this, there then being bitter feeling between them, Mrs. Ragsdale paid to Mrs. Hewlett some small sum of money, either fifteen or fifty dollars, in consideration of which Mr. Hewlett executed a bill of sale of the piano and machine to Mrs. Ragsdale. Mrs. Hewlett being, at that time, a minor, she afterwards, but without having formally repudiated the contract of sale, demanded possession of the property, which being refused, she instituted this suit. It was further shown on the trial that, pending the suit, the residence of the testatrix had been destroyed by fire, and the piano, stool and cover and the sewing-machine burned, without fault of the testatrix.

Upon these facts the appellant contends--

First.--That the plaintiff could not recover the property without a formal renunciation of the contract of sale, which was not shown.

Second.--That she was not entitled to the possession of the property without first having paid or tendered the storage charges paid by Mrs. Ragsdale.

Third.--That the loss by fire, without fault of Mrs. Ragsdale, of the piano, stool, cover and sewing-machine, discharged her of liability therefor.

We are of opinion that the defendant was precluded from making either of the defenses suggested in the first two assignments as above noted, by reason of having defended the suit upon a general denial of the plaintiff's right to the property. A demand by the...