Oppenheimer v. Telhiard

• Decision Date: 28 June 1920
• Docket Number: 21051
• Citation: 123 Miss. 111,85 So. 134
• Court: Mississippi Supreme Court
• Parties: OPPENHEIMER v. TELHIARD

85 So. 134

123 Miss. 111

OPPENHEIMER v. TELHIARD

No. 21051

Supreme Court of Mississippi

June 28, 1920

March 1920

1 SALES. Written lease covering furniture held to constitute sale under Louisiana law.

A so-called written lease whereby a furniture merchant of New Orleans, La., delivered to his lessee or customer a suit of furniture at his New Orleans residence, examined, and under the Louisiana law construed as a sale.

2 SALES. Agreement for sale of furniture held to authorize purchaser to sell.

Under a written contract whereby a furniture merchant delivered a suit of furniture to his customer, the terms of which require the customer to pay unconditionally the full amount of the purchase price and provide that title should pass on payment of the agreed consideration, the purchaser may sell the property, and the buyer may pay or tender the balance due and retain or defend his possession.

3. JUSTICES OF THE PEACE. Deposition of nonresident witness may be taken in civil suit and is available to either party.

Under sections 1925, 1928, and 1931, Code of 1906 (sections 1585, 1588, and 1591, Hemingway's Code), the deposition of a nonresident witness may be taken in a civil cause before a justice of the peace the same as in the circuit court, and when received by the justice such deposition is filed and deposited among the papers in the cause and may be introduced by either party.

4. JUSTICE OF THE PEACE. Deposition of nonresident witness should be certified on appeal to circuit with original papers.

The deposition of a nonresident witness taken for use in the trial of a civil cause before a justice of the peace should on an appeal from the justice court to the circuit court be certified by the justice of the peace along with the original papers and process, and, when lawfully taken and certified, may be introduced on the trial de novo in the circuit court.

5 TRIAL. Instruction directing jury to fix value of furniture at stated sum without competent evidence held erroneous.

In a replevin suit for the possession of a suit of furniture, an instruction which directs the jury to fix the value at a stated sum without any competent evidence is erroneous.

6 DEPLEVIN. Value of articles of furniture should on finding for plaintiff be assessed separately.

The jury in a replevin suit over articles of furniture should, in finding for plaintiff, assess the value of each article separately.

HON. D. M. GRAHAM, Judge.

APPEAL from circuit court of Hancock county, HON. D. M. GRAHAM, Judge.

Replevin by Mrs. Nannie Telhiard against Mrs. Jos. Oppenheimer, brought before a justice of the peace. A judgment by default was rendered and on trial de novo in the circuit court plaintiff recovered judgment, and defendant appeals. Affirmed as to liability, and reversed and remanded as to damages.

Affirmed as to liability. Reversed and remanded as to damages.

McDonald & Marshall, for appellant.

Is a conditional sale recognized by the law of Louisiana, in which state the contract of sale involved in the case at bar was executed? A conditional sale of a chattel, as known to the jurisprudence of Mississippi, is not recognized by the supreme court of Louisiana. An executory contract of sale, or a contract of sale with a "suspensive condition" is given full effect in that state; the contract of sale becoming operative only upon performance of the "suspensive condition." Barbara Asphalt Paving Company v. St. Louis Cypress Company, 46 So. 193 (bottom of left hand column, page 198); William Frantz & Company v. Fink, 52 So. 131.

The question of whether Moss became the owner of the goods (so as to be able to convey a valid title to a third party, the defendant in an action for the goods) or not depends upon what was the agreement of the parties. The parties had a perfect right to make any agreement they chose in that regard. The right conferred upon Moss by that agreement were: "(1) To become owner of the goods on paying the price set upon them; (2) to sell the goods to some one else at a cash price of not less than that set upon them. The right was not conferred upon him to buy the goods on a credit; or, in other words, to become debtor to plaintiff for the price of the goods . . . The goods were not sold to him, and the only way in which he could become the owner of them was by paying cash for them." Page 137, left-hand column of 52 So.; Girault v. Fencht, 117 La. Ann. 276, 41 So. 572; Baldwin v. Morey, 41 La. Ann. 1105, So. 796.

Such was the case at bar. There was no sale to Nolan embodied in this written contract. Scarcely could it be said that there was an executory contract of sale, because Nolan was not by this contract absolutely obligated to buy, hence, title did not pass. "The reason why a sale under a suspensive condition does not transfer the ownership is that it is not a sale." Barbara Asphalt Paving Company v. St. Louis Cypress Company, supra. The contract being not one of absolute sale, and, at the farthest stretch there being only a contract with a "suspensive condition" and this condition never being performed, title never passed from Oppenheimer to Nolan. Nolan never having acquired title, he could transfer or confer none. Frantz & Company v. Fin, supra.

II. Could the contract be construed as one of lease under the laws of Louisiana? We submit that the contract was purely one of lease, and nothing else, under the decisions of both the supreme court of Louisiana and the supreme court of Mississippi. To hold otherwise would be making a contract for the parties other than that entered into by them. Puffer Manufacturing Company v. William A. Dearman, (The Cyclone case), 97 Miss. 622, 54 So. 310; Selig v. Dumas, 48 La. Ann. , 21 So. 91; Barbara Asphalt Paving Company v. St. Louis Cypress Company, supra.

Was Mr. H. J. Nolan in default at the time Oppenheimer's agent took possession of the goods? That he was is conceded by everyone connected with the case. Upon a rental of ten dollars per month, he owed over forty-four dollars. If the contract is a lease, can it be said that the lessee had an option to buy or pay the price and was the option exercised in this way?

The contract being a lease, the lessee probably did have a personal option to buy, or to pay the price, and thus to become owner by performance of this "suspensive condition" in this conditional option--which is, of course, the case with every option. The contract provided that only he, if anyone, could exercise the option, and the option could be exercised, if at all, only when the signed receipt of Mr. Oppenheimer should be given. Fresno Home Packing Company v. A. J. Lyon and Company, (Mississippi), 53 So. 585; Check-Neal Coffee Company v. Morrison Hinton Grocery Company, 96 Miss. 835, 51 So. 1; Red Snapper Sauce Company v. Bolling, 95 Miss. 752; Gross v. Todd; 94 Miss. 168, 47 So. 801.

Now whether the contract between Oppenheimer and Nolan was one of lease or of absolute sale, a balance of forty-four odd dollars remained due to Oppenheimer on the transaction from Nolan. Accordingly, the letter from Nolan to Oppenheimer, which cannot be varied by a showing of supposed contemporaneous or prior negotiations, from the moment of mailing, constituted an absolute sale back to Oppenheimer. E. L. Trenhold, Trustee, v. Mary R. Miles, 102 Miss. 835, 59 So. 930; E. E. Forbes Piano Company v. Hennington (Miss.), 67 So. 483.

Even if Mrs. Nolan had been a validly constituted agent of her husband to sell the goods, her authority was automatically revoked by his sale. Kolb v. Bennett Land Company, 74 Miss. 567, 21 So. 233.

In conclusion, we thank the court for the close attention it has given this cause, which does not involve interests of magnitude.

Gex & Waller, for appellee.

We fail to catch the significance of the statement which our friends say is supported by the case of Barber Asphalt Paving Company v. St. Louis Cypress Co., 46 So. 193. That case holds as unmistakably and in as clear language as possible for logic and reason to express itself that in Louisiana a contract of sale with reservation of title is an impossibility. At page 194, left-hand column, in the opinion in that case, in dealing with that proposition, the Louisiana court said:

"The plaintiff company's position is that the contract can and should be enforced as made, that is to say, that Hoyt should owe the price without ever having become the owner of the thing; and that it, plaintiff company, should be held to have continued to be owner of the thing and yet to have become the creditor of Hoyt for the purchase price. Such a contract appears to us to be legally impossible."

Again the court states, page 196, right-hand column: "The essentials of a sale are; A thing, the property in which is transferred from the seller to the buyer; and a price in money paid or promised. Civ. Code, art. 2439. It follows from this that to suppose a sale without a transfer of the property or thing, which forms the object of the sale is simply to suppose an impossibility. Either, therefore, the ownership of this shovel was transferred to Hoyt and the stipulation of conditional ownership must be disregarded or else there was no sale made to him. The latter supposition is inadmissible; because not only the allegation is that there was a sale made, but the plaintiff company has in its pocket a part of the price, and is not offering to restore it. The rule in the interpretation of contracts is that any stipulation which is found to be inconsistent with the intent of the parties as collected from the whole instrument must be disregarded. 9 Cyc. 583. In this case the manifest intention of the parties was that there should be a sale and the stipulation of continued ownership is inconsistent with that intention."...