Porter Hardware Co. v. Peacock

• Decision Date: 22 May 1922
• Docket Number: 22545
• Citation: 129 Miss. 129,91 So. 856
• Court: Mississippi Supreme Court
• Parties: PORTER HARDWARE CO. v. PEACOCK

91 So. 856

129 Miss. 129

PORTER HARDWARE CO. v. PEACOCK

No. 22545

Supreme Court of Mississippi

May 22, 1922

1. REPLEVIN. Not guilty is the only plea permitted.

"Not guilty" is the only plea permitted in an action for replevin.

2. REPLEVIN. Only money judgments that can be rendered are for value of property or interest therein and damages for wrongful taking and suing out of writ.

The only judgments for the recovery of money that can be rendered in an action of replevin are for the value of the property involved or the interest therein of the party recovering for damages for the wrongful taking or detention of the property and for damages for the wrongful suing out of the writ.

3 SALE. Rescinding buyer has lien for price; in seller's replevin action, buyer is not entitled to judgment for recovery of money paid.

Where a buyer has and seasonably exercises the right to rescind a sale, he may retain the property purchased until any money he may have paid the seller thereof has been refunded, but in an action of replevin by the seller to recover possession of the property sold the buyer is not entitled to a judgment against the seller for the recovery of the money so paid him.

4 EVIDENCE. Conditional sales note cannot be varied by parol evidence of warranty.

A writing, executed by a purchaser to a seller, containing a promise to pay the seller a certain sum on or before a certain date, and reciting that: "This note executed for the following described property: fourteen horse power Waterloo engine... which I have this day received from the Porter Hardware Company with the express agreement and understanding that the title to the said property is now and shall remain in the said Porter Hardware Company until all said notes are paid in full" etc.---is not only a promissory note, but a contract which cannot be varied by parol evidence showing that the seller warranted that the engine would generate power sufficient to run a particular factory.

HON. W A. ROANE, Judge.

APPEAL from circuit court of Lafayette county, HON. W. A. ROANE Judge.

Action by the Porter Hardware Company against J. W. Peacock. Judgment in favor of the defendant, and the plaintiff appeals. Reversed and remanded.

Reversed and remanded.

W. G. Boyett, for appellant.

That the judgment of the court in this case is contrary to the law and the evidence. The sole issue to be tried in this case is the question of the right of possession of the property involved in this suit. 46 Miss. 245.

Admitting testimony to show anything but the right to possession of the property involved is contrary to the provisions of Code section 4232, defining the issues joined in a suit for replevin. "The declaration may be filed after the issuance of the writ if it be filed on or before the first day of the return term, or before any order of dismissal be taken; and the action may be tried at the first term of the court. The defendant may plead that he is not guilty of the premises charged against him, and this plea shall put in issue not only the right of the plaintiff to the possession of the property, but also the wrongful taking and detention, or wrongful detention thereof, as the case may be.

Not guilty, is the only plea to the action. Any other plea may be stricken out on motion or treated as a nullity. Bennett v. Holloway, 55 Miss. 211.

Paragraph 4, page 1416, 34 Cyc: "The rule is well settled in early cases that a set-off is not allowable in an action of replevin, except where equitable relief may be demanded under exceptional circumstances and in some jurisdictions the filing of a counterclaim in a replevin suit is expressly prohibited by statute."

It is the contention of appellant that the question of breach of warranty, if maintainable at all, is maintainable as a separate action, apart from the right to the possession of the property which is the question presented by the declaration and plea in replevin. 12 S. & M. 233.

The court erred in admitting parol testimony to change, alter or contradict the terms of a written contract to-wit: the sale contract, which is the basis of this action.

A careful consideration of the contract in this case, upon which appellants based their suit, conclusively presents the proposition that the contract is complete within itself and needs nothing to enlarge its scope so as to conform to the intention of the parties at the time of the making of the contract. It is error to admit parol or extrinsic evidence, either to add to or ingraft upon a contract complete within itself between the parties.

Section 1481, page 1119, Vol. 22, Corpus Juris; Footnote 83, page 1119, Vol. 22, Corpus Juris; Hebard v. Cutler, 91 Vt. 218, 99 A. 879; Section 441, page 554, Jones on Evidence; National Cash Register Co. v. Blumenthal, 86 Mich. 464; Hightower v. Henry, 85 Miss. 476, 37 So. 745.

The plea of "not guilty" is the only plea admissible in this action by the defendant, any other plea or matter arising under any other plea, is inadmissible, as the right to the possession of the property involved and damages are the sole issue for the jury.

The contract in this case defines the rights of the parties. In bringing the suit in replevin the plaintiff was enforcing the contract rather than rescinding it. It is a written contract of conditional sale, absolute and complete between the parties, a breach and demand followed by the regular, legal suit in replevin. Code 1906, section 2232, provides: ". . . The defendant may plead that he is not guilty of the premises charged against him and this plea shall put in issue not only the right of plaintiff to the possession of the property but also the wrongful taking and detention." Not guilty is the only plea to the action. Any other plea may be stricken out on motion or treated as a nullity. Bennett v. Holloway, 55 Miss. 211.

The jury in this case was unwarranted in assessing damages for breach of warranty without some evidence of the amount defendant was damaged by such breach, granting that the defendant had the right to introduce such evidence. Parr v. Gibbons, 27 Miss. 375.

The court erred in refusing to exclude such evidence offered by the defendant in an attempt to show a breach of warranty and in refusing plaintiff's request for a peremptory instruction. Set-off, recoupment and counterclaim cannot be maintained in an action to recover property, such arising out of some alleged breach of contract, the action of replevin sounding in tort and taking the nature of tort.

"It was also charged as a plea of set-off to-wit that such a plea was allowable in any case under our pleading acts because the action was for unliquidated damages, in part at least." Whittaker v. Roberson, 8 S. & M. 349; Gordon v. Bryan, 2 Jones (N. Y.) 150; Montague on Set-Off, 13, 17, 19 quoting from the opinion of the court in the case of Burrers v. Gordon, 57 Miss. 93.

Harry M. Bryan, for appellee.

Appellant contends that the judgment of the learned court below is contrary to the law and the evidence and assails the admissibility of any evidence to show other than whether or not the plaintiff was entitled to possession. Yet counsel sets out in full section 4232, Code of 1906 (Hemingway's Code, section 3061), which provides that the plea of the defendant shall put in issue "not only the right of the plaintiff to the possession of the property, but also the wrongful taking and detention, or wrongful detention thereof, as the case may be."

Appellant places great reliance upon the case of Bennett v. Holloway, 55 Miss. 211. An examination of this case will clearly show that it is distinguishable from the case at bar. In the Bennett case the defendant filed two pleas: One, "not guilty," and the other, a special plea. The court, speaking through Judge CAMPBELL, said, in part: "It was erroneous to render judgment for the plaintiff on his motion, based on the ground that the defendant had pleaded two pleas that cannot be joined in law." This action of the court was based on a misconception of section 597 of the Code, which has no reference to the action of replevin, which is governed by chapter 16 of the Code. The plea of not guilty is the only one provided for in replevin, as regulated by that chapter of the Code, and any additional plea may be stricken out, on motion or treated as a nullity, but section 597 relates only to those actions in which several pleas in bar may be pleaded together.

"The evidence entitled the defendant below to the verdict, and the motion for a new trial should have been granted."

We deem it unnecessary to remind the court that in the instant case only one plea, that of "not guilty" was filed by the defendant. It is true that he set up recoupment or counterclaim in his notice under the general issue but not as a special plea. This recoupment, or counterclaim, arose from the breach of warranty by appellant which was overwhelmingly established by competent proof and so decided by a jury of twelve good and lawful men.

It was established at an early date in this state that a set-off could be proven under the general issue if the items thereof be filed with the plea and notice required by statute be given (See section 744, Code of 1906, Hemingway's Code, section 527.) Kershaw v. Merchants Bank, 7 How. 386; Alliston v. Lindsey, 12 Sm. & M. 656; Code, section 529; See also in harmony with this view the cases of Lapham v. Osborne, 20 Nev. 168, and Holderman v. Mainer, 104 Ind. 118.

Why compel a defendant to bring a new and separate action to recover for a breach of warranty where the parties, the subject-matter, the very transaction, are the same? Especially, when not only the right to possession is sought by plaintiff but damages for the unlawful detention?

Appellant cites 34 Cyc. 1416...