Kerl v. Smith
| Decision Date | 24 January 1910 |
| Docket Number | 14,152 |
| Citation | 96 Miss. 827,51 So. 3 |
| Court | Mississippi Supreme Court |
| Parties | CHARLES A. KERL v. ISAIAH S. X. SMITH |
FROM the circuit court of Lincoln county, HON. MOYSE H. WILKINSON Judge.
Kerl appellant, was plaintiff in the court below; Smith, appellee was defendant there. The case was begun in the court of a justice of the peace and appealed to the circuit court. From a judgment of the circuit court in favor of the defendant the plaintiff appealed to the supreme court.
Plaintiff instituted replevin to recover from defendant the possession of a horse alleged in the affidavit in replevin to be wrongfully detained by defendant. Plaintiff was engaged in the manufacture of pine timber, his mills being in the Lard neighborhood, and entered into a written contract with defendant in these words:
Plaintiff attempted to show that the word "timber" in the contract meant "merchantable pine timber" and that only fifteen thousand feet of such timber could be cut from the defendant's land in question, which at the agreed purchase price would be fifteen dollars, and that accordingly defendant owed him a balance of eighty-five dollars in money for the horse. The trial court refused to allow such evidence, and peremptorily instructed the jury to find for the defendant.
Reversed and remanded.
Jones & Tyler, for appellant.
According to the contract executed and delivered by appellee, the horse was to remain the property of Kerl until one hundred thousand feet of timber were delivered, and if there was not sufficient timber on the land, then, in that event, appellee was to make up the balance in cash. The sale of the horse by appellant to appellee was conditioned on the payment by Smith of $ 100, either in timber at the price of one dollar per thousand feet, or, in money, the title to the horse remaining in appellant until the purchase price was paid. The unbroken line of authority in this state is that is such case, replevin will lie. Ketchum v. Brennan, 53 Miss. 596; Duke v. Shackleford, 56 Miss. 554; Dedrick v. Wolfe, 68 Miss. 506; Journey v. Priestley, 70 Miss. 586; Foundry Co. v. Ice Company, 72 Miss. 615; Polle v. Rouse, 73 Miss. 717; Young v. Salley, 83 Miss. 364.
The rule of law is that the reservation of title is but a security for the purchase price, and if the property is recovered by the. seller, he must deal with it as security, and with reference to. the equitable rights of the buyer, but this does not abridge the right of the seller to maintain replevin for the property.
The appellant met the burden of proof by showing that the sale of the horse was conditional, and that the condition, namely, the payment of one hundred thousand feet of lumber, or the balance in cash, had been broken. Ketchum v. Brennan, supra. The appellee, when sued, having stood on his ground and contested the right of the appellant in the property, was estopped to rely on the failure and demand the property. George v. Hewlett, 70 Miss. 1. Moreover, the evidence shows that appellant did demand the amount remaining unpaid, calling upon appellee to pay the amount due on the purchase price after deducting the value of the timber delivered. Therefore, the exclusion of the evidence offered by the appellant and the direction of a verdict for appellee was erroneous and the judgment should be reversed.
The standards of interpretation are divided into four classes (a) the popular standard, meaning the common and normal sense of words; (b) the local standard, including the special usages of a religious sect, a body of traders, etc.; (c) the mutual standard, covering those meaning which are peculiar to both or all the parties to a transaction, but shared in common by them; (d) the individual standard of one party to an act, as different to that of the other party, or parties, if any. 4 Wigmore Ev. § 2461-65. The contract in this case in which the word "timber" is used, falls clearly within the third standard of interpretation. The term "timber" is not a generic term. It has no single, certain and definite meaning in the sense in which it is used in the contract between these parties, and while the appellant cannot claim to enforce his individual standard of meaning; yet, to explain and show the sense in which the word was mutually used by both parties, does not contravene the two rules opposed, in some cases, to the operation of the third standard; so that the general principle has full sway. The word "timber" may mean one of many things, differing widely according as it is used. Donworth v. Sawyer, 94 Me. 243;...
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Williams v. Batson
...210; G. & S. I. R. R. Co. v. Patten, 180 Miss. 756, 178 So. 468; Continental Cas. Co. v. Pierce, 170 Miss. 67, 154 So. 281; Kerl v. Smith, 96 Miss. 827, 51 So. 3; Vinegar Bend Lbr. Co. v. Churchwell, 123 Miss. 807, 96 299. The phrase "during the life of this instrument" denotes duration wit......
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...69 Ark. 317; 10 L. R. A. 735; 80 U.S. 653; Jones on Ev. 576. Proof of custom is admissible to show that "timber" means merchantable timber. 51 So. 3; 138 S.W. 36; 12 Cyc. 1081 (e) and (b); 60 S. E. (Ga.) 297; So. 248. See also 4 Cent. Rep. 689, 6 A. 48; 164 Pa. 51; 77 Ark. 120. 2. If it was......
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