National Cash Register Co. v. Hude

• Decision Date: 20 January 1919
• Docket Number: 20484
• Citation: 80 So. 378,119 Miss. 36
• Court: Mississippi Supreme Court
• Parties: NATIONAL CASH REGISTER Co. v. HUDE

80 So. 378

119 Miss. 36

NATIONAL CASH REGISTER Co. v. HUDE

No. 20484

Supreme Court of Mississippi

January 20, 1919

Division B

1 SALES. Installment paid. Common law lien of buyer.

Where a cash register company sold a machine to a buyer under a contract reciting that the payments made should be retained as rent for the use of the cash register, such provision does not apply in a case where the cash register is defective and does not come up to representations.

2 SAME.

This clause would become applicable only in case the cash register was as represented, and was retained by the defendant under conditions where the plaintiff or seller had complied with his part of the contract.

3 SAME.

To disaffirm or rescind a contract for the sale of a cash register on account of misrepresentations, the buyer must tender the cash register back to the seller, and he could then enter suit for any amount paid the seller under such contract, but for such payments, the buyer has neither a statutory or common-law lien on the property sold.

4 SAME.

Where the seller of merchandise delivers goods of an inferior quality to that required by the contract, the buyer may: First---Reject the goods and sue for damages, or, Second---Pay the contract price, take the goods and recover the difference between their value and the value of the goods required by the contract.

5. SAME.

The only method of acquiring a lien on the property by the buyer in such case would be by attachment.

6. SAME.

Where, in a suit by a cash register company against a buyer for the purchase price of a machine upon which partial payments had been made the defendant did not file any offset or plea of recoupment, his rights for money paid in partial payments on such machine were not adjudicated in such suit.

HON. E. L. BRIEN, Judge.

APPEAL from the circuit court of Warren county, HON. E. L. BRIEN, Judge.

Replevin by the National Cash Register Company against John Hude. From the judgment rendered, the plaintiff appeals.

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

Judgment reversed.

J. C. Bryson, for appellant.

The plaintiff's declaration and the defendant's pleas and notice presented to the court below two issues and only two for decision, both mixed, involving questions of fact and law. These issues may be stated as follows:

1st--Estoppel in pais--The notice admits the sale and delivery of the register in dispute by complainant to defendant and avers that the complainant had in a former case, sued the defendant for the balance due of the purchase price, and thereby estopped itself from claiming title and right of possession to the register.

2nd--That defendant had the right to hold possession of the register because of a lien in his favor thereon for the sum of two hundred and thirty-five dollars which he had paid thereon before electing to cancel the contract for breach of warranty.

The court below decided the first issue in favor of the appellant and the defendant has not appealed, hence, his action in that regard is not drawn in question before this court.

The second issue having been decided against appellant, is drawn in question and must now be decided. The sole question before the court is--Did Hude acquire a lien or claim on the register in question by virtue of the partial payments made by him to the plaintiff on the purchase price?

The contract of sale certainly did not declare any lien on the machine to secure the repayment to Hude of any money paid by him on the purchase price while trying out the machine. The only contractual provision which by any possibility might be construed as bearing on this point, is as follows: "Upon failure of the undersigned Hude to make any payment provided herein at the time same is due, and payable, you (appellant) or any person by your order may take possession and remove said register without legal process, and in such case it is agreed that all payments theretofore made to you thereunder shall be considered as having been made for use of register while in possession of undersigned and such payments shall be retained by you as rental.

Counsel for defendant in the court below contended and the lower court must have agreed with them, that the foregoing provision contemplated a machine which fulfilled the requirements of the contract and not one which had been held not to fulfil the contract.

Whether this contention and holding be sound or not, we submit it cannot help appellee's case. If sound, it merely renders the contractual provision inapplicable and ineffective, it cannot be distorted or twisted so as to give Hude any claim on the machine or right to possess it, after default in payment. It was simply intended to protect the seller and not the buyer.

Since the contract does not give Hude a lien on the register to secure a return to him of any part of the purchase price he might have paid, before refusing to accept the machine, such lien cannot arise except by operation of law or by statute.

Certainly no statute confers such lien. That has never been contended.

I have not understood counsel to contend specifically that a lien arises in Hude's favor by operation of law, but as that is the only possible way (other than by contract or by statute) a lien could possibly arise, I conclude they must be understood as asserting a lien by operation of law. Such liens are declared to exist according to the text in 17 R. C. L., page 601, paragraph 8, to wit:

"A common-law lien is the right of a person to retain that which is within his possession belonging to another until certain demands against such other persons are satisfied. . . . Particular liens, have always been admitted by the common law in favor of those persons, such as inn-keepers, common carriers, and warehousemen, who are bound by law to serve the public in their trades and occupations."

This text further holds that such liens exist in favor of "other persons in a variety of cases, where such persons by their labor and skill have imparted an additional value to the goods." Hude's case does not fit with either condition, he was not in a public service business, and he did not perform any work on the register whereby its value was improved.

In the case of Howze v. Rook Lbr. Co., decided on July 8, last, reported in 79 So. 98, not yet out, it was sought to establish a lien in appellees' favor on a house constructed of lumber taken by appellant from a building on a lot bought at a tax sale by appellees, as to which appellee's tax title had not matured at the time of conversion, and the court held there was no lien but merely a right of action for the value of the house destroyed. "There is no statutory or common-law lien upon appellants' land." This is a negative assertion that liens (in the absence of contract) can arise only by common law or statute.

In the present case we submit there is neither common-law grounds or statute to sustain the lien claimed.

In the argument before the court below the cases of Warner v. Fant, 74 So. 822, and Munn v. Bowser, 75 So. 372, were relied on. The Warner case involved the selection of remedies and nothing else. Fant, the moving party, had first brought suit by garnishment and attachment, and afterwards joined in a creditors' bill and the court held that he selected his forum and remedy when he commenced the first action and was bound by that election and could not re-open the controversy in the second suit after it had been decided against him in the first.

It seems to me that no such question can be involved in this case. It is apparent, however, that counsel for Hude could have so framed the issue in the first suit that it would have been determinative of the present. Had opposing counsel plead in recoupment, or offset, or counterclaim, or some other form, so as to raise the question of the value of the register and whether or not the same had been paid by Hude. Such a plea after trial and verdict therein in Hude's favor would have precluded the plaintiff in the case. Such issue however was not raised, counsel for Hude elected not to plead payment, but no sale, and therefore an absolute failure of consideration. Under this plea the only issue passed on was whether there was a valid sale, and if not, nothing could be owing. The value of the register, and whether or not such value had been covered by the payments already made by Hude, was not drawn in question, or passed on. The first instructions asked and given in favor of Hude on the former trial makes the issue submitted to the jury clear.

The second case, Munn v. Bowser, 75 So. 372, 114 Miss 500, while closely related to the case at bar, involved an entirely different issue from that now before the court. Bowser sold a gasoline tank, reserving title in himself until paid for in full, taking a note for the purchase price. Default was made in the payment of the note and suit was brought as in the present case--"the defendant filed a plea of recoupment or set off," unlike the present case, and the jury found a verdict for defendant, like this case. Afterwards Bowser brought replevin for the tank, the same as in the present case. It will be observed that the only difference between the case at bar and the Munn v. Bowser case arises from the nature of the plea filed in the first suit. The right to recover in replevin in each case must rest on the retention of title by the sales contract in the seller. In each case, the retention of title was for security only, and under each contract the purchaser on discovery of the breach of warranty had the option of two separate and distinct remedies, to wit: (a) to reject the thing as delivered as not fulfilling the contract; (b) to accept the thing delivered for what it is worth,...