Lancaster v. Jordan Auto Co.

• Citation: 187 So. 535,185 Miss. 530
• Decision Date: 27 March 1939
• Docket Number: 33629
• Court: United States State Supreme Court of Mississippi
• Parties: LANCASTER v. JORDAN AUTO CO

187 So. 535

185 Miss. 530

LANCASTER v. JORDAN AUTO CO

No. 33629

Supreme Court of Mississippi, Division B

March 27, 1939

Suggestion Of Error Overruled April 24, 1939.

APPEAL from the circuit court of Adams county HON. R. E. BENNETT Judge.

Suit by Otto Lancaster against the Jordan Auto Company for the conversion of an automobile. From the judgment, the plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Engle &amp Laub of Natchez and Jos. M. Reeves, of Vidalia, La., for appellant.

Renunciation of liability in the course of performance is a ground for rescission. Where a party has partially performed a contract on his side and a renunciation is made by the other party in the court of performance, or where such other party prevents or makes further performance impossible, the party injured may treat the contract as rescinded and sue at once on a quantum meruit to recover for what he has performed or what has been paid by him.

A repudiation before the time when performance is due warrants rescission by the other party and a recovery upon quantum recruit as far as he has performed. Upon the anticipatory repudiation of a contract by one party, the other may rescind the contract and recover the value of any performance rendered.

12 Am. Juris., Contracts, sec. 442, pages 1024-5.

This is what the appellant sought to do in this case when he filed his suit against the appellee setting up the facts of the contract, the repudiation of same by the appellee, the selling of his car by the appellee and the putting of the money in its pocket and the refusal of the appellee to do anything about it. To justify its conduct the appellee took the position that as the car it had loaned the Lancasters had been injured while being driven by Mrs. Lancaster that the appellee was, therefore, released from any liability to the appellant.

This position is absolutely untenable and no justification for it can be found in any statutory law or in any reported decision of any court. Attention is called to the fact that the appellee did not plead the damage its car had suffered in the wreck by way of recoupment or by way of set-off, and a study of its notice of special matter will show that it claimed its car was worth $ 500 when delivered to the Lancasters and that when it was taken possession of by the appellee after the accident it was not in the condition it was in when delivered to the Lancasters.

Even had the appellee pleaded by way of recoupment or set-off and even had the circumstances of the damage to the car of the appellee been such as to render the appellant liable for such damages, then the most that the appellee could have claimed was a credit for the cost of restoring its car to its former condition.

The doctrine is well established that the breach of one contract does not justify the aggrieved party in refusing to perform another separate and distinct contract.

12 Am Juris., sec. 438, page 1019.

The jurisprudence of Mississippi and Louisiana holds the bailee to that measure of care of the bailed property as an ordinarily careful or prudent man would give to his own property.

Miss. Digest, Bailment, Key No. 11; Meine v. Mossler Auto Exchange, Inc., 120 So. 533; Gulf & Ship Island R. Co. v. Sutter Motor Co., 126 So. 458; Greenville Insulating Board Co. v. McMurray, 145 So. 730; Royal Ins. Co., Ltd., v. Collard Motors, 179 So. 108.

The law is plain that the bailee is not an insurer of the bailed property nor liable for value thereof when destroyed without his negligence.

The appellee made no effort to check up on the amount of the damage or do anything further to minimize the loss, but simply took possession of the car through its agent, Mr. Cobb, and placed it in a garage and did nothing more except take the position that the contract with appellant was thereby cancelled.

Weis v. Pan American Petroleum Co., 126 So. 90.

Nowhere is it contended that the appellant was guilty of any negligence. There is no proof that his wife, who was driving the car, was guilty of any negligence, but, on the contrary, incontrovertible proof that she was driving the car prudently, carefully and safely, and that no accident would have resulted but for the fact that the brakes caught and the car was thrown at right angles across the highway in the path of the oncoming car.

Under the law of Louisiana married women are completely emancipated as in Mississippi.

Act No. 283, 1928 Regular Session of the Legislature of Louisiana; Adams v. Gholson, 174 So. 876.

We say with confidence that, regardless of how the damage and injury to the car of the appellee happened, and regardless as to whose fault is responsible for that accident, this appellant was in no wise chargeable with any resulting damages.

The appellant had a right to rely that the car when turned over to him for use of himself and family was in good mechanical condition and nothing had occurred to cause him to anticipate such an accident as did happen, nor had Mrs. Lancaster observed anything to cause her to anticipate such an accident.

The bailor, by the bailment, impliedly warrants that the thing hired is of a character and in a condition to be used as contemplated by the contract, and he is liable for damages occasioned by the faults or defects of the article hired.

6 Am. Jur., Bailments, sec. 189, page 284, and sec. 190, page 284; Williamson v. Phillipoff, 64 So. 269; Southern Digest, Bailments, Key No. 9; Swift Refrigerator Trans. Co. v. Internation Molasses Co., 10 Orleans App. 117; Restatement of the Law, Torts, sec. 408, page 1096; 12 A. L. R. 774-777; Cooper v. Layson Bros., 14 Ga.App. 134, 80 S.E. 666, 8. N. C. C. A. 718; Mallory S. S. Co. v. Druham, 84 So. 874; Windle v. Jordan, 75 Me. 149; Horne v. Meakin, 115 Mass. 326; Gagnon v. Dana, 69 N.H. 264, 41 L. R. A. 389, 76 A. S. R. 170, 39 A. 982; Cooke v. New York Floating Dry Dock Co., 1 Hilt. 436; Kissam v. Jones, 56 Hun. 432, 10 N.Y.Supp. 94; Conn v. Hunsberger, 224 Pa. 154, 25 L. R. A. (N. S.) 372, 132 A. S. R. 770, 73 A. 324, 16 Ann. Cas. 504; Jones v. Page, 15 L. T. (N. S.) 619; Fowler v. Lock, L. R. N., 7 C. P. 272, L. R., 10 C. P. 90; Mowbray v. Merryweather, 2 Q. B. 640, 65 L. R. Q. B. (N. S.) 50, 14 Reports, 767, 73 L. T. (N. S.) 459, 44 Week. Rep. 49, 59 J. P. 804; Vogan v. Oulton, 81 L. T. (N. S.) 435, 16 Times L. R. 37; Williamson v. Phillipoff, 66 Fla. 549, 52 L. R. A. (N. S.) 412, 64 So. 269; Bass v. Cantor, 123 Ind. 444, 24 N.E. 147; Swigert v. Graham, 7 B. Mon. 661; Leach v. French, 69 Me. 389, 31 Am. Rep. 296; Famous Planers Film Co. v. Salomon, 106 A. 282; Harrington v. Snyder, 3 Barb. 380; Pneumatic Scale Corp. v. Ideal Cocoa & C. Co., 62 Pa.Super.Ct. 30; Baker & L. Mfg. Co. v. Clayton, 40 Tex.Civ.App. 586, 90 S.W. 519; Sims v. Chance, 7 Tex. 561; Chew v. Jones, 10 L. T. 231; Reynonds v. Roxburgh, 10 Ont. Rep. 649; Garrettson & Co. v. Rinehart & D. Co., 75 W.Va. 700, 84 S.E. 929.

It has been held that in bailments for hire the bailor's liability for personal injuries due to defective condition of the chattel bailed depends on whether the bailor knew of the defect, or, if not, whether it was discoverable by him through the exercise of due care.

Stanley v. Steele, 77 Conn. 588, 69 L. R. A. 561, 60 A. 640, 2 Ann. Cas. 342, 18 Am. Neg. Rep. 20; Nisbert v. Wells, 25 Ky. L. Rep. 511, 76 S.W. 120; Copeland v. Draper, 157 Mass. 558, 19 L. R. A. 283, 34 Am. St. Rep. 314, 32 N.E. 944; Conn v. Hunsberger, 224 Pa. 154, 25 L. R. A. (N. S.) 372, 132 Am. St. Rep. 770, 73 A. 324; Akers v. Overbeck, 18 Misc. 198, 41 N.Y.Supp. 382; Moriarty v. Porter, 22 Misc. 536, 49 N.Y.Supp. 1107; Emmons v. Stevane, 77 N. J. L. 570, 24 L. R. A. (N. S.) 458, 73 A. 544, 18 Ann. Cas. 812; Campbell v. Page, 67 Barb. (N. Y.) 113; Talmage v. Mills, 80 A.D. 382, 80 N.Y.Supp. 637; Windle v. Jordan, 75 Me. 149.

A bailor who holds himself out as in the business of letting vehicles for hire owes a duty to supply a vehicle as fit for the purpose for which it is hired as care and skill can render it.

6 Am. Jur., sec. 195, pages 288-289; Saunders System Birmingham Co. v. Adams, 217 Ala. 621, 117 So. 72, 61 A. L. R. 1333; 12 A. L. R. 781, 61 A. L. R. 1337; 19 L. R. A. 283; 5 Am. Jur., Automobiles, sec. 349, page 690, sec. 358, page 698; Sears v. Interurban Transp. Co., Inc., 125 So. 748.

Under the law of Louisiana a bailment is called a deposit, and the rights between the parties are regulated by statute.

Civil Code of Louisiana, arts. 2315, 2692, 2695 and 2960; Schoppel v. Dailey, 36 So. 322; May v. Schiepes, 147 So. 717.

We have gone to great length herein, and probably unnecessarily, to give the court a full exposition of the law of Louisiana with reference to the obligations of the bailor and of the bailee with respect to the article bailed or deposited or loaned or leased. We say much of this is probably unnecessary because it is clear that the appellant was not using the loaned or deposited or bailed car at the time of the accident and is not in any wise responsible for what happened to the car while being used by another person, namely, his wife, who had, according to the testimony of Mr. Metcalfe and Mr. Lancaster, the same right to use the car that Mr. Lancaster had, and at the time of the accident she was using the car solely for her own purpose. The law is clear and settled beyond question that the husband is not responsible for the torts of his wife, especially when committed out of his presence, and especially when she is engaged on her own business. It is our judgment that the establishment of these facts regarding who had possession of the car at the time of the accident is an absolute defense to any contention of the appellee that Lancaster should be held responsible for the consequences of the accident.

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