P. E. Payne Hardware Co. v. International Harvester Co.

• Decision Date: 06 March 1916
• Docket Number: 17900
• Citation: 110 Miss. 783,70 So. 892
• Court: Mississippi Supreme Court
• Parties: P. E. PAYNE HARDWARE CO. v. INTERNATIONAL HARVESTER CO., BARNES INTERVENER

70 So. 892

110 Miss. 783

P. E. PAYNE HARDWARE CO. v. INTERNATIONAL HARVESTER CO., BARNES INTERVENER

No. 17900

Supreme Court of Mississippi

March 6, 1916

APPEAL from the circuit court of Pike county. HON. D. M. MILLER Judge.

Suit by the International Harvester Company against the P. E. Payne Hardware Company in which Joe Barnes as receiver of the hardware company intervened, from a judgment for plaintiff defendant and intervenor appeal.

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

Case reversed and remanded.

Mixon &amp Cassidy, for appellant.

J. S Sexton and V. M. Roby, for appellee.

OPINION

COOK, P. J.

The Payne Hardware Company was engaged in the mercantile business in the town of Tylertown, and P. E. Payne was the manager of the business. This company handled, as local agent of the International Harvester Company, gasoline engines and a line of agricultural implements. In December, 1912, P. E. Payne, the president and active manager of the business, abandoned the business and left for parts unknown. On December 21, 1912, the Harvester Company sued out a writ of replevin, and it was levied on the engines, machinery, and implements in the custody of the Hardware Company. The Hardware Company failing to give bond, the Harvester Company executed a bond, took possession of the property, and removed same from the place of business of the Hardware Company. Some weeks after the seizing of the goods under the writ of replevin, the chancery court, upon the petition of the general creditors of the insolvent Hardware Company, appointed a receiver for the insolvent Hardware Company. The receiver, by leave of the chancery court, intervened in the replevin suit, and propounded a claim to the property levied on as a part of the assets of the insolvent corporation of which he was receiver. The issue thus made was fought out before the court, and resulted in a judgment for the Harvester Company; hence this appeal.

The receiver contends that the property in issue was "used or acquired" in the business of the Hardware Company, "and as to the creditors of any such business" the property should be treated as the property of the Hardware Company and liable to be taken for its debts. In other words, the receiver claimed the property as assets of the Hardware Company, and that he was entitled to the possession of same for the benefit of the creditors. This again brings into play our "sign statute," which is section 4784, Revised Code 1906, and is in the following words:

"If a person shall transact business as a trader or otherwise, with the addition of the words 'agent,' 'factor,' 'and company,' or '& Co.,' or like words, and fail to disclose the name of his principal or partner by a sign in letters easy to be read, placed conspicuously at the house where such business is transacted, or if any person shall transact business in his own name without any such addition, all the property, stock, money, and chooses in action used or acquired in such business shall, as to the creditors of any such person, be liable for his debts, and be in all respects treated in favor of his creditors as his property."

The Harvester Company contended below, and contends here, that the receiver could not propound this claim, and, if he could, the statute does not apply to the facts of this case. To make clear the position of the Harvester Company, we quote from the brief of its counsel as follows:

"There can be no controversy as to the time when the right authority, and possession of a receiver vests. The authorities are uniform on this subject, and it would be but burdening this brief to quote numerous citations supporting the well-known rule that the powers and rights of a receiver are fixed as at the date of his appointment. But we respectfully make reference to the language of a few decisions here mentioned, which, without question, disposes of the contention of counsel for the receiver that the latter is entitled to the possession of the property sought to be recovered by him in this action, which was not in the custody, use, or control of the Payne Hardware Company at the time of the appointment of the receiver, but, on the contrary, had by due process of law been reclaimed by its owners three weeks before the petition seeking the appointment of a receiver was ever filed.

"34 Cyc. 199, par. 4: 'The receiver's rights become fixed at the date of his appointment; his title accrues at that time, and...