McCraney v. McLaurin
| Citation | 140 So. 524,162 Miss. 897 |
| Decision Date | 28 March 1932 |
| Docket Number | 29909 |
| Court | Mississippi Supreme Court |
| Parties | MCCRANEY v. McLAURIN |
1 REPLEVIN.
Action of replevin is founded on right to possession at time of institution of suit.
2 REPLEVIN.
Right of purchaser of automobile on conditional sales contract to possession thereof at time of bringing replevin held for jury.
APPEAL from circuit court of Jasper county, HON. EDGAR M. LANE, Judge.
Suit in replevin by J. B. McCraney against J. P. McLaurin. Judgment for defendant, and plaintiff appeals. Affirmed.
Affirmed.
G. H. Banks and E. R. Wall, both of Newton, for appellant.
Correspondence of three persons must be excluded under the general principle respecting res inter alios acta, unless the party against whom the communications are tendered is in some way connected therewith or knew and approved their utterance.
Title Guaranty & Surety Co. v. Bank of Fulton, 89 Ark. 471, 117 S.W. 537, 33 L. R. A. (N. S.) 676; 10 R. C. L. 1147, pars. 351-352.
A self-serving declaration is no more admissible when reduced to writing than when uttered orally.
Fearing v. Kimball, 4 Allen, 125, 81 Am. Dec. 690; Kane v. Chicago B. & Q. R. Co., 90 Nebr. 112, 132 N.W. 920, Ann. Cas. 1913A, 764, 36 L. R. A. (N. S.) 1145; Dempsey v. Dobson, 174 Pa. St. 122, 34 A. 459, 52 A. S. R. 816, 32 L. R. A. 761; 13 L. R. A. 419.
The star witnesses for the defendant in the trial below, namely, McMullan and Parker, officials and agents of the McMullan Motor Company admitted every material contention the plaintiff in agreeing to take the car and hold it and giving him an opportunity to redeem it by paying the small balance due. In other words, touching the pertinent facts of the case at issue in the lower court, there was no material conflict in the testimony. These witnesses admitted that they agreed to hold the car and gave appellant a chance to redeem it by paying the balance due. They admitted that he did appear in a few days and tender to them the balance due. They admitted that the investment company did not resell the car but the resale was made by the McMullan Motor Company.
All testimony permitted by the trial court over the objection of appellant touching the investment company in connection with the case in any way was error; and all instructions with reference to the investment company in connection with the case were erroneous instructions and could have no other purpose than to confuse and mystify the minds of the trial jury in the court below.
J. Knox Huff, of Forest, for appellee.
The property rights of the appellant to the car were founded upon and limited by, the conditional sale agreement. By it title to the car was retained in seller and transferred by the assignment to Industrial Investment Company, of Jackson, Miss. By it only delivery was made to appellant, and agreement to pass title to him was conditioned upon, "all payment, agreements, terms and conditions" thereby imposed upon appellant being "promptly and faithfully made, done or performed." By it also appellant's possession of the car depended upon his keeping and performing "each and every provision and condition" thereof.
In the case of a conditional sale, if the condition of payment is not strictly performed, at or before the time limited, the right is gone forever, and there is no subsequent power of redemption.
Weathersley v. Weathersley, 40 Miss. 462.
The instrument under which appellant and the Industrial Investment Company were operating in their transaction is a condition sale contract and not a chattel mortgage.
Mitchell v. Williams, 124 So. 430, 155 Miss. 343 and authorities there cited.
J. B. McCraney, the appellant, filed a suit in replevin and sued out a writ for the repossession of one Ford type body Tudor automobile, motor No. 2112201, model 1929, tag No. 220-316, alleged to be the property of the appellant and unlawfully detained by J. P. McLaurin, of the value of four hundred dollars, to which declaration McLaurin pleaded the general issue.
It appears from the record and the exhibits to the declaration that McCraney purchased the automobile in question from the McMullan Motor Company of Lake, Mississippi, paying part cash and executing notes payable monthly for the balance of the purchase money. In the contract of...
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