Gregory v. Lacy
| Decision Date | 20 January 1930 |
| Docket Number | 28337 |
| Citation | 156 Miss. 147,125 So. 722 |
| Court | Mississippi Supreme Court |
| Parties | GREGORY et al. v. LACY |
SALES. Makers of note given for automobile, reserving title in seller, held liable for expenses of retaking car; makers of note given for automobile, reserving title in seller, held not entitled to defend on ground value of car retaken should be applied on note.
Where several parties are sued on a note for the purchase price of an automobile, in which note title was reserved in the seller with a stipulation that the car should not be moved out of the state without the seller's consent, and where the car was retaken, the makers of the note should pay all expenses of such taking, including storage and attorney's fees and when the car was seized in a foreign jurisdiction and the seller inquired of defendants what to do with it, and they requested that it be not sold, they cannot maintain defense against the note after its maturity on the ground that the value of the car should be applied on the note.
APPEAL from circuit court of Lee county HON. C. P. LONG, Judge.
Action by W. B. Lacy against Mrs. L. A. Gregory and others. Judgment for plaintiff, and named defendant and another defendant appeals. Affirmed.
Affirmed.
Blair & Anderson, of Tupelo, for appellant.
Modifications of the original contract are not invalid because not supported by a new consideration, the consideration for the original contract being sufficient for that purpose; and in addition the mutual promise and undertakings of the parties constituting such modifications are sufficient consideration for each other.
Wormser & Co. v. Sea Food Co., 90 So. 116; Albert Mackie & Co., Limited, v. S. S. Dale & Sons, 84 So. 453; Whidden v. Davidson, 83 So. 178.
The seller of personal property may make a conditional sale thereof, reserving title until payment of the purchase price, but such reservation of title is only as security for the purchase price, and, if the property is recovered by the seller, he must deal with it as security, and with due regard to the equitable rights of the purchaser.
I. P. Bankston v. Hill, 37 A.L.R. 88; 134 Miss. 288, 98 So. 689.
Where a conditional-sale contract authorizes the seller to retake possession of the property, and he does so, he cannot recover the balance of the purchase price if the circumstances show that the retaking was absolute.
White v. A. W. Gray's Sons (1904), 96 A.D. 154, 89 N.Y.S. 481; J. B. Van Derveer & Sons v. Canzono (1923), 206 A.D. 130, 200 N.Y.S. 563; Dasher v. Williams (1923), 30 Ga.App. 122, 117 S.E. 108; 37 A.L.R., page 94; Hargett v. Muscogee Bank (1924), 32 Ga.App. 701, 124 S.E. 541; Wright v. Horton (1919), 32 Idaho 516, 185 P. 555; 37 A.L.R., page 104; Madison River Livestock Co. v. Osler (Mont.), supra.
Where the seller took possession of the property when the buyer was not in default in performing, the latter may treat the contract as rescinded and recover the amount paid on the purchase price.
Daskalopoulos v. Mulvanity (1920), 79 N.H. 533, 111 A. 832; 37 A.L.R., pages 113-114; Madison River Livestock Co. v. Osler (1909), 39 Mont. 244, 133 Am. St. Rep. 558, 102 P. 325.
Where the seller of property upon conditional sale, prior to the default of the buyer, seizes the property and refuses to return it upon demand by the buyer, and finally sells it, he is liable to the buyer for the amount the latter has paid upon the purchase price, less the value of the use of the property.
Boggan & Leake, of Tupelo, for appellee.
Previous verbal agreements are merged in the written contract.
McInnis v. Manning, 95 So. 250, 131 Miss. 119.
The consideration for the modification of an executory agreement must rest on the mutual assent of the parties.
13 Corpus Juris, page 590, section (605) B. (606) 2, (607) 3; H. B. Owen Tie Company v. Bank of Woodland, 101 So. 292, 136 Miss. 114; Alexander v. Long Pine Lumber Company of La., 93 So. 199, 152 La. 399; Bratton v. Howard, 52 So. 210, 97 Miss. 17; Threshing Machine Company v. McCoy, 72 So. 138, 111 Miss. 715.
.
W. B Lacy was plaintiff in the court below and brought this suit against Charles Gregory, Mrs. L. A. Gregory, and Z. O. Gregory, upon a note for two hundred fifty dollars, the price of an automobile purchased from W. B. Lacy by Charles Gregory; Mrs. L. A. Gregory and Z. O. Gregory being joint makers of said note. The title to said car was reserved in the note which provided that it should not be moved out of the state, and that, on default in payment, or breach of any of the conditions contained therein, Lacy should have the right to repossess the car, and that the makers of the note would pay all expenses, including storage in any such proceedings, and would also pay a reasonable attorney's fee. The note was dated February 28, 1923, and was due one year after...
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