Mobile Auto Co. v. Sturges

• Decision Date: 12 October 1914
• Docket Number: 16559
• Citation: 107 Miss. 848,66 So. 205
• Court: Mississippi Supreme Court
• Parties: MOBILE AUTO CO., et al. v. R. W. STURGES

66 So. 205

107 Miss. 848

MOBILE AUTO CO., et al. v. R. W. STURGES

No. 16559

Supreme Court of Mississippi

October 12, 1914

APPEAL from the chancery court of Lauderdale county. HON. SAM WHITMAN, Chancellor.

Suit by W. R. Sturges and Company against the Mobile Auto Company and others. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

McBeath & Miller, for appellant.

A. S Bozeman, for appellee.

OPINION

REED, J.

On May 29, 1911, R. W. Sturges & Company purchased an automobile from the Mobile Auto Company. A sight draft was drawn for the purchase price, one thousand, two hundred and fifty-six dollars, with bill of lading attached. The car was shipped to Meridian, consigned to the Auto Company, with instructions to notify Sturges & Company. The draft and bill of lading were assigned to the Bank of Mobile. Sturges & Company paid the draft, obtained the bill of lading, and received the automobile. Immediately upon its inspection they wrote the Auto Company that they were disappointed with the car, and that it appeared to have been used a great deal. In their letter they called attention to several defects in the car and suggested that they could not sell it as a new car, but could keep it for demonstrating purposes, and that a reduction should be made to them on the price. Several letters passed, without any definite understanding being reached. On June 30, 1911, the Mobile Auto Company sold Sturges & Company another automobile, and made draft with bill of lading attached for the purchase price. As in the other sale, the draft and bill of lading were assigned to the Bank of Mobile. This draft was collected by the First National Bank at Meridian.

Thereupon Sturges & Company, appellees, filed their bill in chancery to attach the money then in the hands of the First National Bank as the property of the Mobile Auto Company and the Bank of Mobile, appellants, both non-resident corporations, domiciled in Mobile, Alabama; the purpose of the suit being to recover damages for breach of contract in the sale of the first automobile. Upon a final hearing the chancellor gave judgment in favor of appellees and against appellants for one hundred-forty-three dollars and fifty cents, which was ascertained to be the loss sustained.

Appellants contend that the receipt and examination of the automobile by appellees constituted an acceptance by them, and that they could not thereafter rescind their contract or sue for breach of warranty. This is answered by the notice, contained in appellees' letter under date of May 31st, of the defective condition of the automobile, and their inability to use it as a new car. The receipt of the automobile, under the circumstances shown in this case, did not amount to an acceptance thereof by appellees, so that they were precluded from recovering the loss they sustained by reason of the car not being in the condition required by the contract of sale.

If the sale had not required the payment of the purchase price before delivery, appellees, as buyers, could have (1) rejected the car and entered suit for damages for breach of the contract, or (2) paid the price, taken the car, and recovered the difference between its value in the condition received and the value of the car required by the contract. Commission Co. v. Crook, 87 Miss. 445, 40...