McPherson v. Acme Lumber Co.

• Decision Date: 20 March 1893
• Citation: 70 Miss. 649,12 So. 857
• Court: Mississippi Supreme Court
• Parties: WALLACE MCPHERSON v. ACME LUMBER COMPANY

12 So. 857

70 Miss. 649

WALLACE MCPHERSON v. ACME LUMBER COMPANY

Supreme Court of Mississippi

March 20, 1893

FROM the circuit court of Lauderdale county, HON. S. H. TERRAL Judge.

Replevin by Wallace McPherson against the Acme Lumber Company.

The case was, by consent, tried before the court without a jury upon an agreed statement of facts, the substantial parts of which are as follows: In January, 1891, McPherson sold to the Acme Lumber Company certain personal property, being the machinery and outfit for a dry-kiln. The written contract between the parties provided that, upon receipt of the bill of lading for the property purchased, the lumber company should pay a certain sum in cash, and execute its notes for $ 400 each, payable in three and five months respectively. The contract stipulated that the title of the kiln should remain in the seller until payment in full should be made. After the execution of the contract, the parties thereto agreed upon a change as to the size of the kiln and the price to be paid and, in accordance with this agreement, the said lumber company paid a certain sum in cash, and executed its four notes for the balance of the purchase-price. These notes were indorsed and assigned by Wallace McPherson to other parties and, as they fell due, the lumber company having failed to pay any of them, the holders instituted suits upon them. Subsequently, the lumber company executed a mortgage to other creditors, covering all its property, including the property in controversy, and the assignee of the above-mentioned notes united with other creditors in a bill to cancel the mortgage and subject the property embraced in it to the payment of their debts. After the institution of this suit, McPherson being indorser on one of the assigned notes, paid to the holder thereof the sum of $ 115; and, while the above-mentioned suits at law and suit in equity were pending, he instituted this replevin suit to recover the property, the title to which he had reserved at the time of the sale. The defendant gave bond, and retained the property, and while it was in his possession, and before a trial of the replevin suit, it was burned. It does not appear how the property came to be burned, though it seems that counsel and the court assume that it was destroyed without fault on the part of the defendant.

It was agreed, further, that the questions to be decided, and upon which the rights of the parties should depend, are (1) whether the plaintiff can maintain replevin, while, at the same time, the assignees of the notes are suing thereon, and (2) whether the burning of the property, after the bond had been executed by the defendant, is a defense.

During the trial, the plaintiff offered to deliver to the defendant all the said notes if the defendant would pay the value of the property in controversy; but this proposition was not accepted. The court rendered judgment in favor of the defendant, and plaintiff appeals.

Reversed and remanded.

Hamm, Witherspoon & Witherspoon, for appellant.

1. It is no defense that the property was burned while in defendant's possession. By executing the replevin bond, defendant prevented plaintiff from getting possession of his property. But for this, the property would probably not have been destroyed, or else plaintiff could have prevented loss by insuring. It is just and right that the bond should be liable. This question has been put at rest by the decision of this court in Hewlett v. George, ante, 1.

2. The pendency of the suits on the notes cannot defeat the action of replevin. It was clearly the intention of the parties to the contract that defendant should be liable on the notes and that the property should also stand as a security. Plaintiff was not willing to part with his property upon the security of the notes alone. There is no effort to recover the full price of the property, and, at the same time, recover the property itself. The object of all the suits is the same, i. e., the collection of the debt due by the defendant. The resort to the security is consistent with this purpose. The vendor of land may, at the same time, enforce his lien in the chancery court and sue at law on the purchase note. So a mechanic may enforce his lien, and, at the same time, sue in assumpsit. The vendor who reserves title can recover even against an innocent purchaser from the vendee. 53 Miss. 609. It is only when the contract is rescinded that the tender of the money is necessary. The bringing of an action of replevin is merely enforcing the contract. Duke v. Shackleford, 56 Miss. 552; Dederick v. Wolfe, 68 Miss. 500; Tufts v. Stone, ante, p. 54. The fact that the notes have been assigned cannot prevent McPherson from maintaining the action of replevin. He has no interest in the collection of the debts. He is no more than a naked trustee. He is interested to the extent that he is liable as the indorser on the notes. Even since the institution of the action of assumpsit, he has paid $ 115 to one of the plaintiffs because of his indorsement. Hence, the lumber company owes that much directly to McPherson. The mistake of counsel for appellee is in considering the purpose of the action of replevin to be the determination of who is the owner of the property in dispute. It is to determine who is now entitled to possession. We do not contend that McPherson should recover the property and hold it as absolute owner. Defendant could, at any time, terminate plaintiff's right of possession by paying the balance of the purchase-money. See Tufts v. D'Arcambal, 85 Mich. 185 s.c. 24 Am. St. Rep., 79. If there were any merit in this...