Ham v. Cerniglia

• Citation: 18 So. 577,73 Miss. 290
• Court: United States State Supreme Court of Mississippi
• Decision Date: 18 November 1895
• Parties: C. M. HAM v. C. CERNIGLIA ET AL

18 So. 577

73 Miss. 290

C. M. HAM v. C. CERNIGLIA ET AL

Supreme Court of Mississippi

November 18, 1895

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

The furniture in controversy was attached by appellees for rent in arrears, in February, 1894. Ham, the appellant, replevied it as his. On the trial in the magistrate's court it was held that it belonged to May Lee, the tenant of appellees who occupied their house in which it was situated at the time of the levy. Ham appealed to the circuit court.

It appeared on the trial in the latter court that, in 1891, 1892 and 1893, Ham was a dealer in furniture, and had sold to May Lee numerous articles of furniture, of which those in controversy constituted but a small part. In each instance he took from her a contract partly written and partly printed using the following printed form:

"C M. Ham having this day rented to me the following property to wit: , of the agreed value of dollars and cents, to be kept at my premises, No. , street, and not to be removed therefrom without his consent, I agree to pay to him, for the use of said property by me, at said place, the rent of dollars and cents per week, payable on demand at the end of each week, the first week's rent of dollars and cents to be paid upon the delivery of said property to me; and, if I remove, or cause to be removed, the said property without his consent, or fail to pay said rent when due, I hereby agree to authorize the said C. M. Ham, his agents or attorneys, to enter my house, or any premises of which I may have control in which said property may be found, and take away said property. And I also specially agree, in case any rent remaining due by me for said property has to be collected through an attorney, to pay a reasonable attorney's fee therefor, and that said delivery payment for the first week's rent shall be forfeited by me, to be applied towards the payment of said attorney's fee, and that the same shall be due and payable as if it had never been paid. Witness, ."

These contracts were duly signed by May Lee; and inserted in the blank spaces are the premises on which the furniture was to be kept, the name of the purchaser, the agreed value of the articles, and the amount of rent to be paid weekly, which weekly rents are in such amount as would very speedily equal the agreed value, if paid as they fell due. The aggregate value of furniture mentioned in all of the contracts was $ 953.75. At the time of the levy, $ 484.50 had been paid in money, and the appellant having then taken back a part of the furniture, of the value of about $ 400, there remained due to him a balance of $ 69.25, which was considerably in excess of the value of that part of the furniture in controversy, as estimated by the jury. Most of the articles in suit were purchased in 1891, but the sales extended from May, 1891, to July, 1893. The purchase price of each lot of furniture, when sold, was charged by appellant upon his books to May Lee, and the sum thus charged was the exact value, in each instance, specified in the contract, and all payments made by her thereon were placed to the credit of her general account on appellant's books.

The appellant testified that when May Lee first began to buy from him--in fact, after the first bill of goods purchased--she desired to get more furniture than was at first contemplated; that he did not expect to sell her so much as she decided to get, but, before the sale of the property in suit and the execution of the contracts therefor, agreed to do so, and that it was then orally agreed between them that all money paid by her should be credited on her general account, and that none of the property should be released or considered as paid for until her entire account for all of the furniture that he might sell to her was paid.

This testimony was objected to by the appellees as being an attempt to add to the written contracts a stipulation not contained therein, and the objection was sustained, and the testimony excluded, the appellant being thus left without other evidence of title than the written contracts afforded. The appellant, in the course of his testimony, speaks of the contracts as "bills of sale," and of having "sold" what May Lee "bought" of him; and this was also relied on by appellees as indicating an absolute sale, the matter in controversy being whether the transactions were to be so regarded, or were either conditional sales or leases, as the appellant contended, in the alternative. The court adopted the appellees' view that the transactions were absolute sales, and instructed the jury to find for them. From the judgment rendered on their verdict for appellees, under this instruction, the present appeal is prosecuted.

Reversed.

Jayne & Watson, for the appellant.

1. We think the lower court erred in not excluding the appellant's testimony tending to show that the title was retained in him, that being one of the main inducements to the sale. The written contracts did not show the entire transaction. Ferguson v. Rafferty, 6 Law. Rep. Ann., 1; Brown on Parol Evidence, 173; Ib., rule 6; Hervey v. R. I. Locomotive Works, 93 U.S. 664; Heryford v. Davis, 102 U.S. 235; Dedrick v. Wolfe, 68 Miss. 500. He should also have been allowed to state the value of the property, the amount paid on it, and to state that the property was his.

2. The instruments should be construed as part of a transaction constituting a conditional sale. Such was the intention of the parties. Hervey v. R. I. Locomotive Works, supra. But if they are mere leases of personal property, or bailments, the trial judge was equally in error, for the right of property of the lessor is as well defined in such case as that of the vendor in a conditional sale after breach of condition by failure to pay the purchase money. Considering the instruments alone, without reference to the actual state of case shown by the excluded testimony, the contracts were leases. Viewed with reference to that testimony, the transaction in its entirety was a conditional sale.

3. The evidence shows that there is a balance due the appellant on all the sales in excess of the value of...