Yellow Mfg. Acceptance Corporation v. American Oil Co., 34654.
| Decision Date | 14 June 1941 |
| Docket Number | 34654. |
| Citation | 2 So.2d 834,191 Miss. 757 |
| Parties | YELLOW MFG. ACCEPTANCE CORPORATION v. AMERICAN OIL CO. |
| Court | Mississippi Supreme Court |
John Horan, of Water Valley, for appellant.
Hannah Simrall & Foote, of Hattiesburg, for appellee.
The appellant, hereinafter referred to as the Acceptance Corporation, brought this action of replevin in the Circuit Court of Yalobusha county against the appellee, the American Oil Company, to recover the possession of six automobiles. By consent of the parties the cause was tried on the pleadings and evidence before the circuit judge, acting as judge and jury, resulting in a judgment in favor of the Oil Company in the sum of $600.
The Acceptance Company had given a forthcoming bond for the automobiles, which were valued at that sum. From that judgment the Acceptance Company prosecutes its appeal.
The Oil Company was the owner of a lot and building in the city of Water Valley, which it leased to Zeb Pearce, who conducted on the premises, under the name of Pearce Service Company, the business of an automobile dealer, handling both new and second-hand cars, and in addition refrigerators, stoves water heaters, gas heaters, radios, a filling station, etc. Pearce sold the six automobiles involved in this cause to different persons, taking from each a reserve title purchase money contract for the unpaid balance. Pearce was in arrears for the rent of the place. The Oil Company sued out a distress therefor. That proceeding resulted in a judgment in favor of the Oil Company. The execution of the judgment resulted in the purchase of the automobiles by the Oil Company. Thereupon the Acceptance Corporation brought this action of replevin as stated, to recover the automobiles.
The Oil Company contends that the Acceptance Corporation was not entitled to recover because it was barred from resort to the courts of the state by reason of the fact that it was a foreign corporation doing business in the state without having qualified so to do, as required by the last paragraph of section 4140, Code of 1930. And if mistaken in that contention, the Oil Company, conceding that the automobiles belonged to the Acceptance Company, nevertheless contends that it was not entitled to recover on account of the sign statute, section 3352, Code of 1930. These two statutes, in the order referred to, are in this language:
"If a person shall transact business as a trader or otherwise with the addition of the words 'agent,' 'factor,' 'and company,' or '& Co.,' or like words, and fail to disclose the name of his principal or partner by a sign in letters easy to be read, placed conspicuously at the house where such business is transacted, or if any person shall transact business in his own name without any such addition, all the property, stock, money, and choses in action used or acquired in such business shall, as to the creditors of any such person, be liable for his debts, and be in all respects treated in favor of his creditors as his property." The Acceptance Corporation was a foreign company, with neither place of business nor agents in this state. It was engaged at its office in a foreign state in the purchase of the character of contracts being handled by Pearce. In the course of such business it purchased the contracts covering the six automobiles involved, Pearce guaranteeing the payment of the balances due on them. The purchasers of the automobiles, being in arrears under the terms of their contracts, surrendered them to the Acceptance Corporation. They were left with Pearce for the Acceptance Corporation. According to the evidence on behalf of that corporation, they were left with Pearce for storage only, without any right on his part to sell. Pearce kept them in and around his place of business.
According to the evidence on behalf of the Oil Company,...
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