De Vane Chevrolet Co. v. Montgomery Ward & Co
| Decision Date | 03 April 1933 |
| Docket Number | 29858 |
| Citation | 165 Miss. 185,147 So. 335 |
| Parties | DE VANE CHEVROLET CO. v. MONTGOMERY WARD & CO |
| Court | Mississippi Supreme Court |
1 SALES. Act of buyer of tires in permitting dealer to reposssess truck with tires thereon held breach of conditional sales contract covering tires, entitling seller to maintain replevin.
Buyer of tires, under conditional sales contract, agreed, in substance, to retain possession of the tires, free from the claim of any other person; the contract providing that
2 REPLEVIN.
Where one is lawfully in possession of personal property, having charge thereon, demand by owner is necessary to maintain replevin.
3. PLEADING.
Where defendant, in replevin, contests plaintiff's right of property, defendant cannot thereafter change position and rely upon want of demand as defense.
4. SALES.
Tires sold under conditional sales contract held separable from truck so as to entitle conditional seller to maintain replevin.
APPEAL from circuit court of Lowndes county HON. J. I. STURDIVANT, Judge.
On suggestion of error. Suggestion of error sustained, former opinion withdrawn, and judgment of the trial court affirmed.
Affirmed.
Frierson & Anderson, of Columbus, for appellant.
Replevin is a possessory action, statutory action, and unless the plaintiff is entitled to the immediate possession of the property the action will not stand.
It is indispensable under the issue as well as the common law, that the plaintiff must have the right to the immediate possession.
Lloyd v. Goldsmith, 12 S. & M. 223; Frizell v. White, 27 Miss. 198; Ruck v. Payne, 52 Miss. 271.
Where goods are sold on deferred payment plan, with the stipulation that the vendor may repossess the goods without legal process, if default is made in the payment, demand is necessary before suit for repossession can be maintained.
Sackler v. Slade, 114 So. 396, 148, Miss. 575.
Unless the conditional sales contract did impose the condition which appellee claims was breached, there would be no right of immediate possession.
Montgomery Ward & Company had actual knowledge of the claim of the title to the truck being in the Chevrolet Company at the time it sold the tires. They might have made a condition in their tire contract that repossession of the truck by the Chevrolet Company would be a default in the tire contract. But, having failed to do this, they particularly excluded by this omission and failure this very thing which counsel for appellee are claiming as "default other than nonpayment."
There can be no recovery of the property from third persons claiming under the buyer where the buyer is not in default.
Newhall v. Kingsboro, 131 Mass. 445; Am. Dig. Cen. Ed. 43, 1769-70; 13 C. J., p. 1311, note 74; Cohocton Valley Garage Company v. Kellogg, 136 Misc. 283, 240, N.Y.S. 642; Manufacturer's Discount Company v. American Security Company, 161 N.E. 660; Sallinger v. Collateral. Loan Company, 215 Mass. 266, 102 N.E. 365; 55 C. J., p. 1311, section 1361.
The finding in the Quarles v. Hucherson case, 104 So. 148, 139 Miss. 356, is based upon the conditions of the deed of trust, "sell or otherwise dispose of some part of said property without the consent of the Bank of Kemper." In the case at bar the phraseology of the conditional sales contract of the tires is "I will not sell, mortgage, or otherwise deprive you of that right of possession without your written consent. The possession of the tires by the appellant in the case at bar, where the appellant had repossessed the truck under its conditional sales contract, of which appellee had knowledge at the time it sold the tires and that there was a balance of two hundred ten dollars due on the conditional sales contract on the truck, was not a default in the conditional sales contract on the tires.
In a replevin suit, it is essential to the maintaining of plaintiff's case that he show that the defendant was in possession of the property and that said possession was unlawful.
Hogan et al. v. Commercial Credit Company, 116 So. 298, 150 Miss. 653, 124 So. 332.
Loving & Loving, of Columbus, for appellee.
Breach of condition other than failure to pay embodied in the contract, may entitle the seller to recover possession of the property.
Where the contract provides that the buyer shall keep the property free "of all liens and incumbrances" the attachment of the property by creditors of the buyer will authorize the seller to retake possession. Where the contract provides that possession is to be held by the buyer, subject to the seller's order, and that the seller shall be entitled to one-half the earnings of the property until it is fully paid for, the seller may resume possession of it if for any reason the buyer's conduct is unsatisfactory.
55 C. J., p. 1286, or sec. 1311.
The appellee having in its conditional sale to Branyon, expressly retained title to the goods sold and also retained the right of possession thereto and said Branyon expressly agreed not to sell, mortgage or otherwise deprive the appellee of its right of possession without its written consent, and by selling, disposing of or placing the appellant or permitting the appellant to place itself in possession of the goods in question, there was a default under the contract, evidencing the appellee's right to the possession of the said property, and this suit was not prematurely brought.
Quarles v. Hucherson, 139 Miss. 356, 104 So. 148.
And it is the general rule that, if the buyer transfers the property, as distinguished from his special interest therein, to a third person, either by a sale or mortgage, before performance of the stipulated conditions, he makes himself liable for a conversion. Likewise the purchaser from or mortgagee of the buyer who takes or attempts to exercise rights in the property inconsistent with the rights of the seller is also guilty of a conversion, and it is held that a purchaser in good faith from the buyer, if he sells the property again is liable for conversion. This, however, presupposes that the purchaser from or mortgagee of the buyer does not acquire title free from the seller's reservation of title. An action of trover may be commenced by the seller at the time the conversion takes place, although the payments under the contract of sale may not have matured.
24 R. C. L., p. 488, sec. 781.
By the acts of the purchaser in permitting the appellant, by legal means, or otherwise, it matters not how, to take possession of these goods, there was a default in the said purchaser "otherwise" depriving the appellee of its right of possession without the written consent, and by permitting the said appellant to take possession of these tires and not notifying the said appellee of the claims that the appellant set up on these tires, by virtue of its possession of the same, in repossessing the truck there was another default and the suit was not prematurely brought.
In this cause a pending suggestion of error is sustained, and the former opinion found reported in 139 So. 610 is withdrawn. The judgment of this court dismissing the cause without prejudice because it was a replevin suit prematurely brought is set aside, and a new opinion is filed here.
Appellee, Montgomery Ward & Co., instituted a suit in replevin against appellant, De Vane Chevrolet Company, for possession of certain tires which were sold to C. T. Branyon for use on his automobile truck. It retained title thereto by written contract on conditional sales contract for unpaid balance, to be paid in monthly installments.
The appellant had sold to C. T. Branyon the truck on conditional sales contract, retaining title...
To continue reading
Request your trial