Standard Finance Corp. v. Breland, 42938

• Decision Date: 20 April 1964
• Docket Number: No. 42938,42938
• Citation: 163 So.2d 232,249 Miss. 413
• Parties: STANDARD FINANCE CORPORATION v. Don BRELAND.
• Court: Mississippi Supreme Court

Page 232

163 So.2d 232

249 Miss. 413

STANDARD FINANCE CORPORATION v. Don BRELAND.

No. 42938.

Supreme Court of Mississippi.

April 20, 1964.

M. M. Roberts, R. M. Sullivan, Hattiesburg, for appellant.

W. S. Murphy, Lucedale, for appellee.

BRADY, Justice.

On August 8, 1959, appellee, Don Breland, purchased on a conditional sales contract from Fowler Butane Company, on Standard Finance Corporation forms, one 250 gallon propane tank, gas outlets, trim, material, and a Comet heater with connections, which also had written therein the cost of labor for installation in the sum of $236, plus sales tax and inspection fee, for a grand total of $279.80.

Thereafter, on October 13, 1959, Don Breland purchased on a conditional sales contract from Fowler Butane Company, on Standard Finance Corporation forms, seven Thermolair heaters, together with fittings, valves, and materials, including labor for installation, for a total sum of $211.45, to which was added sales tax and a finance charge, aggregating $258.25.

Thereafter, on March 14, 1960, M. R. Fowler, of Fowler Butane Gas Company, made affidavit, as agent for Standard Finance Corporation, that Don Breland wrongfully detained the 250 gallon propane tank, of the value of $189.50, and materials for gas outlets of the value of $15, and filed same with the justice of the peace, W. P. James, in Cause No. 1514. At the same time, the said M. R. Fowler of Fowler Butane Gas Company, as agent for Standard Finance Corporation, made an affidavit that Don Breland wrongfully detained 6-R. C. 15 Thermolair heaters of the value of $108, one R. C. Thermolair heater of the value of $31.45, and material for seven gas outlets of the value of $50, and filed said affidavits with the justice of the peace W. P. James, in Cause No. 1513. Writs of replevin in both suits were issued on March 15, 1960, and thereafter the tanks, heaters and material were removed from the tourist cottages of Don Breland off his premises and thereafter these two replevin actions came on for hearing on March 22, 1960, and a judgmet was entered in favor of Don Breland on the first cause in the amount of $150 actual damages, together with the sum of $1,250 punitive damages for the malicious and wrongful suing out of the action of replevin; that a similar judgment was rendered in the second cause of action on the heaters in the amount of $150 actual damages, together with the sum of $1,250 punitive damages for the malicious and wrongful suing out of said action of replevin, together with all costs.

These two cases were appealed to the Circuit Court of Greene County from a judgment of the Justice of the Peace W. P. James and, thereafter, on motions, the circuit judge entered an order dated November 14, 1960, dismissing the appeal in Cause No. 1514 of the Circuit Court of Greene County, Mississippi, for lack of jurisdiction, in which the court said:

'It is therefore the order of the Circuit Court of Greene County, Mississippi, that the judgment heretofore rendered in this cause of W. P. James, Justice of the Peace, on March 22, 1960, be and the same are hereby set aside, cancelled and held for naught. It is the further order of the Court that the property involved herein as described in the affidavit be remained and restored to the possession of the defendant, Don Breland.' (R. 277-278).

The appellant took a voluntary nonsuit in Cause No. 1513. No appeals were taken from the dismissal of Cause No. 1514 and the nonsuit of Cause No. 1513. No writs of inquiry were issued. The record discloses, as is alleged, that this property was not restored to the defendant, Don Breland, but remained in the hands of the agent of the appellant, Standard Finance Corporation.

On March 1, 1961, the appellant instituted two suits in replevin in the justice of the peace court of Judge James against appellee, and James L. Buchanan who had possession of the property, and these suits were appealed to the Circuit Court of Greene County from adverse judgments and were designated with new cause numbers, 1541 and 1542. Appellee had not made any additional payments under the contract. Cause No. 1541 was dismissed in the justice of the peace court on the ground that it was still pending in the circuit court. This cause was appealed and when this case reached the circuit court, it was dismissed by the circuit judge on the ground that the court had no jurisdiction to proceed further in that cause, but a motion of the defendant for a writ of inquiry was granted and the case was continued until the next term of the court. The defendant having filed an alleged counterclaim, the plaintiff in replevin was granted time to file an answer to the counterclaim. The appellant demurred to the counterclaim of appellee. At the May Term of court, the other cause, No. 1542, was dismissed by the court as to the plaintiff's declaration and the writ of inquiry was granted to the defendant to be tried at the next term of the court. The alleged counterclaim in this case was continued until the next term of court. The testimony of the claimant, Don Breland, is to the effect that he had made all payments due under the sales contracts before the suits were commenced, and that his payments were up to date; that after these replevin suits were instituted and this property taken from his premises, he made a trip to Hattiesburg to the offices of the Fowler Butane Gas Company and the Standard Finance Corporation and tried to pay the notes that had accrued since the taking of the property; and that Mr. Wilson, employee, refused to accept the same, stating that the matter was in court. Appellee testified that they would not take the money, and that he requested the return of his property from every person with whom he dealt and it was not returned. He testified that he had been paying the Standard Finance Company's agent when he came by his place of business; that he had an agreement with him to go to Hattiesburg and make a payment; that he kept his word and did not owe the Standard Finance Company anything when they replevied his property.

Constable McCoy testified that just after the property was taken Mr. Breland, who had watched the property being disconnected, said:

"I got a receipt I want to show you I've paid for the stuff, paid what I owe them.' I said, 'yes, sir, Mr. Breland, I know that but in a conversation with some of Mr. Fowler's men awhile ago they said they had received some money but they was going to send it back, to go ahead and get the stuff.' He said, 'Well, gentlemen, take it on.' He said, 'you'd be sorry of it.' That is what Mr. Breland said.'

The argument in the case at that point was $9.50 for advance court costs charged to the account of Mr. Breland. One Joe Wilson, who worked for the Standard Finance Corporation, testified that the property was in the hands of the constable and he was under the impression that the court ordered its own officer to restore the property to the defendant, but he admitted that James Buchanan worked for Fowler Butane Gas Company but denied that he worked for the Standard Finance Company. He was asked:

'Q. All right, he was your agent or servant, then? A. Right. * * * A. He was an agent. Q. He was an agent? * * * Q. At the time this happened, he was your agent, was he not? A. That is correct.'

This man was also asked:

'Q. After the replevin was had, did Don Breland ever come and attempt to make any payments on his property? A. He did come to the office and attempted to pay on the contracts. Q. Did you take his money? A. No, sir. Q. Why not? A. Because we did not have his merchandise, we had a contract that was not enforceable, we had attempted to enforce the contract and it was still in litigation. We did not have the merchandise and we did not have a valid contract.'

The witness said that the sale contract carried a cancellation clause which gave them the right to declare the entire balance due and payable on a delinquent account. He said the reason they wouldn't take the payment was because they demanded the entire balance due, and interest.

There is some testimony in the record that Mr. Breland had an agreement with Mr. Lee, who worked for the Standard Finance Company, that Mr. Breland could pay up his balance due. This was on March 8th and, as shown, the balance was paid up on March 16th.

The record in this case shows that the notes due the Standard Finance Corporation were payable in installments; that on March 14, 1960, Don Breland was in arrears on the payment of the installments due. Appellant filed affidavits in replevin on the separate notes in the Justice of the Peace Court in Greene County, Mississippi. Writs of replevin were issued, but it was late in the afternoon and it was decided to wait until the next day before serving the writs. The constable went to appellee's place of business to serve the writs, and appellee's wife told the constable and Mr. Buchanan that the appellee was in Hattiesburg and would be back in the afternoon, so they decided to wait until that afternoon before serving the writs and taking the property therein described. In the morning of that day the defendant went to the office of appellant, Standard Finance Corporation, to pay the overdue installments, but appellant's agent, H. T. Odom, would not accept the payment on the notes because the matter had been filed in court and there was outstanding and due court cost.

The appellee, at noon, when all but one person had gone to lunch, then proceeded to the main office of Fowler Butane Gas Company and paid the back installments to an extra helper, who worked during the noon hour, and obtained a receipt for the payment. That afternoon when the constable returned he then proceeded to show the constable the property described in the writ, and after the property had been disconnected and taken into possession by the constable the appellee notified the constable he had paid the back installments, and then showed the receipt...