Rodgers v. Whitehead

Citation89 So. 779,127 Miss. 21
Decision Date14 November 1921
Docket Number22018
CourtUnited States State Supreme Court of Mississippi
PartiesRODGERS v. WHITEHEAD et al

1 SALES. Contract retaining title in seller held not to provide that seller's taking on default should be in full satisfaction of debt.

A stipulation in a contract of sale that, "It is further agreed and understood that the title to the sawmill and appurtenances thereto belonging shall remain in the party of the first part [the seller], and in case the parties of the second part [the buyers] shall fail to meet any of... the conditions and agreements, the party of the first part can take charge of said property and dispose of same for the balance due on the purchase price," does not constitute an agreement that such property shall be taken in full satisfaction of the debt; and, the seller, in case the property does not bring enough at a sale to pay the debt, may sue for and recover the balance due.

2. TRIAL. Where evidence conflicts on a material issue, a peremptory instruction is error.

Where the evidence is conflicting on a material issue, it is error to grant a peremptory instruction.

HON. T L. LAMB, Judge.

APPEAL from circuit court of Winston county, HON. T. L. LAMB, Judge.

Suit by S. S. Rodgers against Walter Whitehead and another. Judgment for the defendants, and the plaintiff appeals. Reversed and remanded.

Judgment reversed and cause remanded.

H. H Rodgers, for appellant.

Now, in the first instance, the evidence for the appellees and the evidence for the appellants make up a sharp controverted issue and could not have been decided other than by the jury. That all questions of fact, where the issue is sharply drawn or where witnesses testify for the plaintiff sustaining his contention and for the defendant sustaining his contention, then it must be submitted to the jury for they are the only arbiters that can weigh and consider the evidence upon the facts submitted.

All the authorities hold uniformly that the facts in a cause are to be decided by the jury and defines a jury to be "a body of men selected in the manner prescribed by law and sworn to declare the facts in the case as they appear from the evidence presented." 12 Am. and Eng. Ency. of Law, page 319; 12 Ency. Pleading and Practice, 237; Bowers v. Automatic Music Co., 74 So. 774.

Upon the next proposition under this contract as shown in pages 4 and 5, can a cause of action be bottomed on the terms of this contract?

First, it is a contract for seventeen hundred dollars, three hundred dollars having been paid on same, leaving a balance of fourteen hundred dollars and in the terms of said contract, terms of payments, it says that the parties of the second part agree and promise to deliver ten thousand feet of No. 2 and better lumber to party of the first part on the first and fifteenth of each month at Perry-Frasier's tramroad for and at the sum of twenty-two dollars per thousand, or if delivered at Noxapater, Mississippi, for the sum of twenty-five dollars per thousand feet; and parties of the second part agree and bind themselves to begin on June 1, 1920, to delivering said lumber and agree to deliver forty thousand feet by August 1, 1920.

The proposition that the party of the first part or his assigns or this appellee cannot legally hold the parties of the second part for nothing more than this property is perfectly absurd when it is fixed in dollars and cents at the sum of seventeen hundred dollars. That means that this price is the agreed price and that it was sold for seventeen hundred dollars and that the parties of the second part owed the sum of seventeen hundred dollars and the sum is fixed in dollars and cents. There would have been no need of fixing any sum whatever if the property was only to be liable for the sale and there would be no personal liability. The contract taken as a whole shows conclusively that it was a sale at a fixed price and could only be considered as a price certain and that the liability of the parties of the second part at the consummation and signing of this contract was seventeen hundred dollars and we submit the following authorities: Third Am. and Eng. Ency., page 895; Bowers v. So. Automatic Music Co., 74 So. 774; Jones v. Mississippi Farm Co., 76 So. 880; 80 So. 383; 2 Miss. 736; First Miss. Digest, page 557; 48 So. 966; 38 Miss. 280; 35 So. 828.

C. L. Hester, J. A. Flowers and H. H. Rodgers, for appellant.

Counsel for appellees, in their brief, cite 12 C. J., page 520, section 481, for the rule of construction followed by courts in construing contracts, but we must admit our inability to see wherein this authority tends to support their contention. If it was the intention of the parties to said sale contract, to condition said sale so that the seller would be limited to the property conveyed for the amount of the purchase money, this would have been expressed in such terms as to admit of no doubt as to what was intended.

If the contention of appellees were correct, the couverse of the proposition would certainly be true and on this theory of the case, the seller of the mill would have had the right to respossess himself of the same, although the entire purchase price less ten dollars, had been paid by the purchasers, which is monstrous to think that any parties ever intended such in their contracts.

The law of this case is announced in the case of Dederick v. Wolfe, 68 Miss. 506, 9 So. 350. The facts of this case are as follows: "Dederick sold to Wolfe a hay press for the sum of four hundred and fifty dollars, taking in payment therefor three notes, of one hundred and fifty dollars each payable at several future dates, the title to the press being retained in Dederick till all notes were paid. Two of the notes were paid, but default was made as to the last note when under the contract of sale the press was advertised and sold, and Dederick became the purchaser, but at a price that still left a balance due on the last note, on which he brings this suit against Wolfe, the maker for such balance. Judgment was rendered in favor of Wolfe below, from which Dederick appealed. Held that, where the note was not paid, the fact that the seller advertised and resold the chattel, which he purchased for a sum which still left a balance due on the note, will not preclude his recovery of such balance from the purchaser."

The appellees in the present case promised to pay the sum of seventeen hundred dollars for the mill, absolutely and without condition, thus it seems that the case of Dederick v. Wolfe, covers the present case like a blanket. Quoting from the decision in Dederick v. Wolfe: "It would be a most unreasonable interpretation of the contract to hold that Dederick's taking possession of the press was an abandonment of his claim to be paid what had been promised, and not paid. There is no express provision to that effect, and to give such effect to Dederick's act is to cause a forfeiture of his right to be paid in full, at all events, as promised by the buyer; while the other view does justice to both parties, according to their contract, by allowing the seller what he was promised and the buyer what was purchased and treating the press, as it was intended to be, as a security for the payment of the stipulated price."

Burnley v. Tufts, 66 Miss. 48, 5 So. 627, supports the contention of appellant in the present case. In this case, defendant bought a soda fountain from plaintiff, giving him notes payable one each month, expressing the consideration, and stipulating that the title to the fountain did not pass till all the notes were paid. Defendant's store burned after he had received possession of fountain and paid several of the notes, and the fountain was destroyed. Held, that he was none the less liable on the unpaid notes. The contract made was a lawful one, and imposed upon the buyer an absolute obligation to pay. To relieve him from this obligation, the court must make a new agreement for the parties instead of enforcing the one made, which it cannot do.

In the case of Ross-Meehan Brake Shoe Foundry Co. v. Pascagoula Ice Co. et al., the court said: "The right of the seller of personal property to make a conditional sale thereof, reserving title until payment of the purchase price, is too firmly settled in this state to admit of controversy, citing Duke v. Shackleford, 56 Miss. 552; Burnley v. Tufts, 56 Miss. 48, but the reservation of the title is but as security for the purchase price and if the property is recovered by the seller, he must deal with it as security and with reference to the equitable rights of the purchaser. Citing Duke v. Shackleford and Dederick v. Wolfe, supra, and McPherson v. Lumber Co., 70 Miss. 649, 12 So. 857, and other cases. The case of Ross-Meehan Brake Shoe Foundry Co. v. Pascagoula Ice Co., is reported in 72 Miss. 615, 18 So. 364.

McPherson v. Acme Lumber Co., 12 So. 857, a Mississippi decision, holds that the seller of personal property has the right to repossess himself of the property where the title has been retained in himself as security of the debt, and must apply the money received from the sale of such property to the payment of the debt.

Thus it seems that the only way by which the seller of personal property who has retained title to the property in himself until the purchase price is paid, as security for the purchase money, can subject said property to the payment of the indebtedness, and at the same time exercise due regard toward the equitable rights of the purchaser, is to repossess the property, and after publishing notice of the time, place and conditions of sale, sell it at public auction to the highest bidder. Any other method would oftentimes work great injustice on the rights of the purchaser. This is the rule...

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