Mitchell v. Williams

• Decision Date: 11 November 1929
• Docket Number: 28087
• Citation: 124 So. 430,155 Miss. 343
• Court: Mississippi Supreme Court
• Parties: MITCHELL v. WILLIAMS

124 So. 430

155 Miss. 343

MITCHELL v. WILLIAMS

No. 28087

Supreme Court of Mississippi

November 11, 1929

Division B

1. CHATTEL MORTGAGES. Sales. Reservation of title to automobiles sold until all payments were made held not "mortgage," but "conditional sale," not required to be recorded; purchaser of automobile from conditional buyer buys at his peril, though conditional sale contract is not recorded.

Where a dealer selling automobiles upon the deferred payment plan reserves title to the property until all of the payments are made, such instrument is not a "mortgage," but a "conditional sale," and is not required to be recorded, and the purchaser of the automobile from the conditional buyer buys at his peril.

2 SALES. Conditional seller is not estopped, as against subsequent purchaser, from asserting claim against property conditionally sold by mere delay in seeking to repossess automobile after conditional buyer's default; conditional seller, without knowledge of resale of automobile, was not affected by transaction.

Where a person takes a conditional sale contract, reserving title until payments are made, and a person subsequently buys from the buyer, the seller under the original contract is not estopped from asserting his claim against the property by mere delay in taking an action to repossess the car after default. Where such conditional seller did not know, at the time the car was resold, that the same was being done, he is not affected by such transaction.

3. JUSTICES OF THE PEACE. That property stated in affidavit to be worth less than two hundred dollars may be worth more does not defeat justice court jurisdiction without proof of fraudulent undervaluation.

Where a person makes affidavit in a justice of the peace court that property is worth less than two hundred dollars, but where property may be worth more than two hundred dollars in fact such affidavit does not defeat the jurisdiction of the justice of the peace court, unless proof be made that it was knowingly undervalued for the fraudulent purpose of giving the justice of the peace jurisdiction.

HON. J. Q. LANGSTON, Judge.

APPEAL from circuit court of Pearl River county, HON. J. Q. LANGSTON, Judge.

Action by G. H. Williams against Harve Mitchell. Judgment for plaintiff, and defendant appeals. Affirmed.

Judgment affirmed.

J. M. Morse, Jr., of Poplarville, and W. E. Morse, of Jackson, for appellant.

It may be stated as a general rule, that an instrument executed by an agent in a manner evidencing a clear intention to contract for the principal, as inferred from the body, "or signature of the instrument" is generally valid and binds the principal and does not bind the agent.

Mulford v. Rowland, 45 Colo. 172, 100 P. 603; Ga. Ala. Business College v. Co., 8 Ga.App. 348, 69 S.E. 34; Avery v. Doughtery, 102 Ind. 443, 2 N.E. 123; Deming v. Bullitt, 1 Blachf. 241; Copeland v. Hewitt, 96 Me. 525, 52 A. 36; McCline v. Herine, 70 Mo. 18, 35 Am. R. 40 Y; Dubors v. Co., 4 Wend. 285; Donovan v. Welsh, 11 N.D. 113, 90 N.W. 262; McCuary v. McCorkle (Ch. App.), 54 S.W. 53; Eckhart v. Reidel, 16 Tex. 62; Shanks v. Landcaster, 5 Gratt. 110; Winding v. Co., 78 S.E. 384; 2 C. J., sec 337, p. 683.

In the present case the only reasonable conclusion is that plaintiff signed the original contract as agent for the Gulf Chevrolet Company and not as principal.

Where one who owns or has an interest in personal property with full knowledge of his rights, suffers another to deal with it as his own by selling or pledging it, or otherwise disposing of it, he will be estopped to assert his title or right as against a third person who has acted on the faith of and has been misled by his acquiescence.

21 C. J., sec. 158, B. B. Personal Property; Wilkinson v. Love (Miss.), 115 So. 707.

The defendant was a bona-fide purchaser within the meaning of sections 2444 and 2446, Hemingway's (1927) Code.

McLarty v. Ashmore, 128 Miss. 735.

The Mississippi court has uniformly held that "the reservation of title is but as 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 purchaser."

Burnley v. Tufts, 66 Miss. 48, 6 So. 627; Dederick v. Wolfe, 68 Miss. 500; Tufts v. Stone, 70 Miss. 54, 11 So. 792; McPherson v. Lbr. Co., 70 Miss. 649, 12 So. 857; Ross-Mehan Foundry Co. v. Ice Co., 72 Miss. 615, 18 So. 364; Rogers v. Whitehead, 127 Miss. 21, 89 So. 777; Bankston v. Hill, 134 Miss. 288, 98 So. 689; Ketchum v. Brenan, 53 Miss. 596.

The whole theory of conditional sales as propounded by the Uniform Conditional Sales Act is that a conditional sale is in its essence like a chattel mortgage.

Williston on Contracts, 737; Bogert, vol. 2 (a), Uniform Laws Annotated, p. 11; Schneider v. Daniel, 131 N.E. 816 (1921).

John C. Street, of Poplarville, for appellee.

Appellant claims to be an innocent purchaser, but the rule is well settled in this state that an innocent purchaser is not protected where personal property is sold and the seller retains title.

The affidavit in replevin determines the jurisdiction of the court so far as it concerns the value of the property sued for unless the plaintiff knowingly undervalued or overvalued it for jurisdictional purposes.

Ball v. Sledge, 82 Miss. 749, 35 So. 447.

This court has held that under a contract of conditional sale of the kind shown in this case, the property may be recovered by replevin even against an innocent purchaser.

Harrison v. Broadway Motor Co., 128 Miss. 766, 91 So. 453; Burkhalter v. Mitchell, 107 Miss. 92, 64 So. 967; United Motor Truck Co. v. Southern Securities Co., 95 So. 639, 131 Miss. 664; Richton Overland Co. v. McCormick Motor Car Co., 114 So. 387, 148 Miss. 616.

Argued orally by W. E. Morse, for appellant, and by John C. Street, for appellee.

OPINION

Ethridge, P. J.

This litigation originated in the justice of the peace court where G. H. Williams sued out a writ of replevin for the possession of a car which had been sold to one E. A. Smith on deferred payment plan; title being reserved in the seller until complete payment had been made. At the time of the sale to Smith, G. H. Williams, the plaintiff, was engaged in the business of selling automobiles in the city of Bay St. Louis, Miss., under the trade-name of the Gulf Chevrolet Company. Shortly after the sale to Smith by Williams, Williams sold his business to another person by the name of Frierson, and it appears that, after Frierson had bought the Chevrolet business from Williams, Smith went to Frierson and traded the car...