Hunter v. Forrest

• Decision Date: 25 June 1917
• Court: Mississippi Supreme Court
• Parties: HUNTER v. FORREST

75 So. 753

115 Miss. 7

HUNTER v. FORREST

Supreme Court of Mississippi

June 25, 1917

March 1917

Division B

APPEAL from the circuit court in Leflore county, HON. F. E. EVERETT Judge.

Replevin by Mrs. Homer B. Forrest, administratrix of the estate of Homer B. Forrest, deceased, against Mrs. Annie Hunter. Judgment for claimant allowing recovery of part of the property involved, defendant appeals and claimant cross-appeals.

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

Judgment reversed on cross-appellant.

J. W Bradford, for appellant.

The only question involved in this suit is, to whom does the property herein involved belong? And in answer to that, in view of the testimony in this record we submit that the evidence conclusively shows that all the property involved in this suit belongs to the appellant.

Mr. H. B. Forrest was an agent by agreement for Mrs. Hunter in all transactions connected with the furniture business in Itta Bena from March 11, 1915, the date which the trustee sold the goods until his death, April 22, 1915. Therefore all contracts that he made in connection with the furniture business inured to the benefit of Mrs. Hunter, the appellant.

Where an agent purchases property for his principal in the course of business, such property belongs to the principal. This rule is well laid down in 2 C. J., page 705, wherein it says: "Purchasing agents must not purchase for himself. As a general rule, the agent must not, without the principal's full knowledge and consent, purchase for himself, property which he is employed to purchase for his principal. If he does so, it is a breach of faith, and he will be regarded as holding the property so purchased, although purchased in his own name, or its proceeds for his principal, although he contributes his own funds to the purchase. This rule is held to apply, although the agent has no actual authority to purchase it at the time of the purchase."

The judgment of the lower court was correct in instructing the jury to award to the appellant all of the property involved in this suit except that part of the ruling of the court in instructing the jury to award to the plaintiff the amount of James Hunter's exemption. As to this the court clearly committed error in instructing the jury to award to the plaintiff these exemptions because, if Mr. Forrest had purchased and paid for these exemptions when he took the same over from Chas. Posner's store under the law as laid down in C. J., supra, the same would immediately become the property of Mrs. Hunter. It is shown conclusively that he was acting as agent in this matter for Mrs. Hunter; that he was acting for her when Chas. Posner gave his receipt for an itemized statement of these exemptions and marked the same paid at the same time that they were transferred from his store to the store of Mrs. Annie Hunter, and beyond question in view of the testimony in the record, showing that the stock of goods was the property of Mrs. Hunter, Forrest was merely lending his name for Mrs. Hunter's convenience, then the exempt property became the property of Mrs. Hunter without any further transaction being necessary regarding it. The title to property received by an agent is in the principal, and the principal may maintain replevin therefor. 2 C. J., page 888.

H. B. Forrest, having died before this suit was instituted, the best evidence of his connection with this furniture store was in declarations he made regarding his connection with the business. No question was raised in the lower court as to the admissibility of this class of testimony. Declaration against interest and in disparagement of title to either real or personal property are competent evidence and have been so held in numerous authorities in this state, beside authority from several states. Declarations in disparagement of title or in explanation of the ownership of property both real and personal are held admissible. See the following cases: Brown v. McGraw, 12 S. & M. 267; Graham v. Bushby, 34 Miss. 272; Walker v. Marsailles, 70 Miss. 287, 12 So. 211; Spears v. Burton, 31 Miss. 547; Henderson v. Cargill, 31 Miss. 367; 16 Cyc. 1219; Ency of Evid. page 89; Bradley v. Stofford, 23 N.H. 444; 4 A. & E. Ency. of Evid., page 91; McLeod v. Swain, 87 Ga. 156; 27 Asr. 229.

Under the testimony in this case, our opponents are bound to concede that Mr. H. B. Forrest was acting for Mrs. Hunter, as her agent in lending his name, under which was conducted this furniture business, and while so acting, he received from Chas. Posner, the exemption of James Hunter in the matter of the agreed value of two hundred dollars.

In view therefore of the law and the testimony in this case, this exempt property under this agency immediately became the property of Mrs. James Hunter, and was a part and parcel of the rest of the stock of merchandise and furniture and was not in any way directly or indirectly the property of Mr. Forrest.

The court therefore erred in instructing the jury to award to Mrs. Forrest this exempt property.

Monroe McClurg, for appellant.

Of the several undisputed facts disclosed by the record or agreed to in this cause, one of them in that the dead man, Forrest, did not transact the business, and another is, even though it seems to have traveled along through the entire trial unnoticed, that there were no debts against the business by whomsoever transacted, managed, carried on or conducted, because the record is clear and altogether undisputable that the price bid at the open public sale made by the trustee in bankruptcy for the bankrupt stock was paid and that every time a bill was made to replenish the old stock a check was drawn to meet it. Is it not a correct statement to make that section 1300, nor any of its successors down to 4784, has never been appealed to without the statement or showing in some form of the obligation to be protected by it? And, must it not be also shown, established, that there is an actual living obligation that has some reference to the business being transacted? "A little paste board sign Posner put up just for fun and which blew down in a few days." This honorable court will hardly allow countenance to mere possibilities and vague imaginations. There is not in this entire record a suggestion of the remotest character that there was in either fact, probability, or possibility in existence a claim against Mr. Forrest that provoked the statute relied upon by opposing counsel. Hence, it is most respectfully urged, the claim to representative protection of creditors under that law must fail. And, if so, according to their honorable statement of their cases, their case is lost. It is further clear that they had no other basis upon which to predicate the action of replevin, for all the proof and all the open and candid agreements between counsel is that there was not and could not be a single glimmer of a chance for the heirs, because all agree that Mr. Forrest never had a cents worth of interest in any item of the property. Section 4784, a law that most probably has hurt more people than it has helped could not help the heirs in the instance case. Mrs. Hunter and her heirs are happily protected by the facts indisputably disclosed on that proposition.

Now, if the above argument is sound, and it is of course believed to be, the trial court was right in directing the jury to award to Mrs. Hunter all of the property purchased by her at the trustees sale. And, it follows in legal and logical sequence that, the court erred in directing the jury to award to the administratrix the personal property which had been set aside to Mr. Hunter as exempted to him by law from every sort of legal process, except that for the purchase money which did not in anywise enter into the case. If there is any proposition put by the statute and decisions of this state beyond the reach of dispute, it is that a man may do what he pleases with the property mercifully exempted to him for the maintenance and support of his family. Nor in any such case can such property be reached by section 4784. It had been lawfully selected by him, lawfully delivered to him, lawfully segregated from the bulk of the bankrupt stock and stored away in his friendly neighbor's store who did not even charge him storage or commissions on the small portions thereof sold for him.

Hill & Witty, for appellee.

The appellant and cross-appellee devotes her entire brief to the one proposition that according to the evidence in this case H. B. Forrest, bought and held possession of the property in controversy merely as the agent of Mrs. Hunter. For the purpose of this appeal we do not care to deny this. As between the parties, Mrs. Hunter and H. B. Forrest, this may have been true. But this is a contest between Forrest's administratrix and Mrs. Hunter. The administratrix is the representative of Forrest's creditors. As a proposition of law this is so elementary that we do not deem it necessary to cite any authorities in support of the statement. When the administratrix qualified, by virtue of section 2026 of the Code of 1906, she was required to take oath that she would pay the debts of the decedent; by section 2056 of the Code, all personal property of the decedent is declared assets of this estate liable to his debts; by section 2095 of the Code, the administratrix is authorized and required to bring proper suits for the recovery of personal property belonging to the estate; by sections 2104 and 2105 of the Code, the administratrix was required to pay the taxes, and any other debts owing by the decedent. It is perfectly clear that Mrs. Forrest, when she became administratrix, was a mere officer of the court, the representative of creditors of the estate primarily, and secondarily the...