United States Motor Truck Co. v. Southern Securities Co.

• Decision Date: 19 March 1923
• Docket Number: 23066
• Citation: 131 Miss. 664,95 So. 639
• Court: Mississippi Supreme Court
• Parties: UNITED STATES MOTOR TRUCK CO. v. SOUTHERN SECURITIES CO

95 So. 639

131 Miss. 664

UNITED STATES MOTOR TRUCK CO. v. SOUTHERN SECURITIES CO

No. 23066

Supreme Court of Mississippi

March 19, 1923

SALES. Conditional sales held valid; title reserved in conditional seller good against purchaser for value; fact that property under conditional sale placed in stock by buyer in violation of agreement held not sufficient to support verdict for purchaser of original buyer.

It is lawful In this state to sell property conditionally reserving title in the seller until property is paid for, and such reserved title will enable the seller to retake the property from a purchaser for value, without notice unless the proof shows that the buyer was buying it for resale; and the fact that property so sold was placed in stock by the buyer will not support a verdict for a claimant who bought from the original buyer, where the contract between the original parties stipulates that such property shall not be sold, used or removed from a designated place without the written consent of the seller, and where there is no proof that the original seller so consented, and where the sign statute (section 3128, Hemingway's Code; section 4784, Code 1906) is not shown to have been violated.

HON. J D. FATHEREE, Judge.

Appeal from the circuit court of Lauderdale county, HON. J. D FATHEREE, Judge.

Proceedings between the United States Motor Truck Company and the Southern Securities Company. From the judgment rendered, the former appeals. Reversed and judgment rendered.

Judgment reversed.

J. M. McBeath, for appellant.

The plaintiff in this case has tendered a bill of sale which holds that the title remains in the plaintiff until all said notes are paid, and if the claimant is entitled to recover under these conditions of the bill of sale, he must show that he seized the proper car, got a judgment against it, and that the car that he seized and the car he has a judgment against is the same car. That has not been done. and I asked the court for a peremptory instruction for the plaintiff.

We submit that this should have been sustained. The claimant to show by the circuit court records of Lauderdale county that the title to this truck was divested out of the said J. M. Broach and into Southern Securities Company. The Southern Securities Company has not proved its title but has wholly failed. They have not better title than that they got by the suit of Southern Securities Company v. Broach, et al., and in this case they sold a three and one-half ton lumber truck No. 14226 and levied on same for the purchase money and surely this proceeding will not give them title to a United States Motor Truck No. 4226, Model "J", Engine No. 14036 and for this reason we submit that the court erred in giving judgment for the claimant but this judgment should be reversed and judgment entered for appellant.

S. M. Graham, for appellee.

The testimony of witnesses S. M. Graham, record page twenty-two positively identifies the truck seized and sold by Sheriff Martin under execution and bought by appellee at execution sale and stored by appellee with Compress Co., as being the identical truck in dispute here, and in answer of the Compress Co., record page four, it is admitted that the truck was covered by storage receipt number 2007, issued to Southern Securities Co., appellees here. So we submit that identification of the truck is positive apart from any number.

Further we submit that it is elementary, that plaintiff must recover on the strength of its own title if at all and not upon the defects of claimant's title. And since plaintiff let Daniels, as a trader, get possession of this truck for resale, that plaintiff thereby waived its title or lien thereon and is estopped from claiming this truck as against appellee. Citizen Saving & Investment Co. v. Hunt's Garage, 91, So. 133.

We submit that the truck in dispute is sufficiently identified as the truck bought by appellee and stored with Compress Co., under receipt number 2007 and the trial court correctly held that the truck in dispute was the property of appellee and the judgment should be affirmed.

OPINION

ETHRIDGE, J.

The appellant sued out a writ of replevin in the circuit court against the Churchill Compress Company, alleging that the said defendant was wrongfully in the possession of one United States motortruck No. 4226, model J, engine No. 14036, of the value of nine hundred dollars, and that the plaintiff is entitled to recover the same. The compress company filed an answer, and states that said truck was stored in its warehouse by the Southern Securities Company, and for which the Churchill Compress Company issued its warehouse receipt No. 2007, and that said warehouse receipt had not been redelivered to it, but that said motortruck was taken from its possession by the sheriff by virtue of the writ of replevin and that the motortruck was delivered to the sheriff upon his demand in serving the writ, and asked to be dismissed, with its costs.

The Southern Securities Company, claimant, filed its claim, and with it a plea that the plaintiff sold and delivered the property in suit to the W. H. Daniels Auto Company, a trader, for the purpose of resale by the Daniels Auto Company in the regular course of its business, and that said truck was placed on sale on the salesroom floor of the W. H. Daniels Auto Company at Meridian, Miss., and was sold by it as dealer to J. M. Broach, and bill of sale executed, in which said auto company retained title to the said auto truck in the said Daniels Auto Company until the truck was fully paid for and that said Daniels Auto Company then sold the note and bill of sale to claimant herein in due course of business for valuable consideration, without notice of any rights of the plaintiff herein; that default was made in the payment of the said notes, and the claimant sued Broach on said notes, and secured judgment against said J. M. Broach and against said motortruck to satisfy said purchase money lien, which judgment was executed and the motortruck sold by the sheriff under execution and bought in by the claimant at the sheriff's sale and stored with the defendant herein; and that plaintiff is now estopped from recovering said property. To which plea issue in short was taken by the plaintiff.

A jury was waived, and the cause tried before the circuit judge. The plaintiff offered a contract of conditional sale between appellant and the W. H. Daniels...