Opinion
No. 29858.
April 3, 1933.
1. SALES. Act of buyer of tires in permitting dealer to repossess 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: "I will not sell, mortgage, or otherwise deprive you of that right of possession without your written consent. . . . And will hold you harmless from any claims, liens or mortgage on my car (or truck) contrary to your right of repossession."
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, J.
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.
Section 3079, Code 1930.
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; Buck 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."
55 C.J. 1309, section 1360.
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.
55 C.J., p. 1289, sec. 1309.
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 until the balance of unpaid monthly installments were paid.
Montgomery Ward Co. sold these tires to C.T. Branyon on May 16, 1931, and sued out the replevin writ herein on June 1, 1931, at which time no monthly payment had become due, the first of which was to be paid on June 15th thereafter. A cash payment was made by the purchaser on execution of the contract, the applicable part of which is as follows:
"I agree to pay for the above merchandise as follows: Nineteen dollars and twenty cents on the signing of this contract, and nineteen dollars and twenty cents on the same day of each succeeding month until the purchase price is paid in full. Title to and right of possession of the goods shall remain in you until they are fully paid for. I will not sell, mortgage, or otherwise deprive you of that right of possession without your written consent.
"I further agree to protect you against all loss or damage while the goods are in my hands.
"If default be made in the terms of this contract or the payments hereunder, I authorize you to remove the tires from my car ( or truck) wherever it may be found, whether in use or not, and I expressly waive any claim for damages by reason of such repossession. I further agree to notify you of any change of address, and will hold you harmless from any claims, liens or mortgage on my car (or truck) contrary to your right of repossession."
Between May 25th and June 1st, the Chevrolet Company had repossessed the car with the tires in controversy thereon, or attached to the wheels thereof.
Montgomery Ward Co. had actual knowledge of the claim of title to the truck being in the Chevrolet Company at the time it sold the tires.
When the evidence developed these facts, the appellant moved to dismiss the suit because, no default being shown, the replevin suit was filed prematurely, no breach of the contract being otherwise shown by the appellee.
At the conclusion of all the evidence, the appellant moved for a directed verdict for this and another reason. These motions were denied by the court, and the case being submitted to the jury, a verdict and judgment in favor of Montgomery Ward Co. was entered.
In the former opinion we held that there had been no breach of the contract, on the view thereof that there had been no default in payments as provided therein. The case of Quarles v. Hucherson, 139 Miss. 356, 104 So. 148, 149, was not mentioned in the brief of appellee, and we did not question appellee's contention that there had been a breach of the contract by Branyon other than a default in the payments. Notwithstanding, Montgomery Ward Co. and Branyon knew that title to the automobile on which the tires in controversy were placed had been vested in De Vane Chevrolet Company. Branyon in his contract with Montgomery Ward Co. had therein agreed, in substance, to retain the possession of the tires, free from the claim of any other person, by these words in the contract: "I will not sell, mortgage, or otherwise deprive you of that right of possession without your written consent . . . . and will hold you harmless from any claims, liens or mortgage on my car (or truck) contrary to your right of repossession."
When Branyon permitted the De Vane Chevrolet Company to repossess the truck with the tires in controversy thereon, he thereby did all he could to deprive the appellee of its right to the immediate possession. He either sold the truck back to the Chevrolet Company or otherwise disposed of the property in controversy to the detriment of the appellee. Upon the repossession of the truck with the tires attached, under the contract it was the duty of Branyon to either pay or otherwise discharge the claim of appellee, and by failure so to do he breached the contract.
In the case of Quarles v. Hucherson, supra, this court held that the provision of a deed of trust that the mortgagor shall not sell or otherwise dispose of the property therein conveyed is broken by the mortgagor's permitting a sale of the property under an execution issued on a judgment against him. This is controlling here for the reason that either voluntarily or involuntarily Branyon permitted the tires and the truck to pass into the hands of a third party without the written consent of the appellee. Under the above-cited case this constituted such a breach of the contract as warranted the appellee to maintain at once the replevin suit. The language in the Quarles case was otherwise "sell or otherwise dispose of." The language in this contract is "sell, mortgage or otherwise deprive you of the right of possession." By surrendering the truck he deprived, so far as he was able, the appellee of the right of possession.
Appellant, De Vane Chevrolet Company, urged in its original brief that because Montgomery Ward Co. knew and was fully advised of the automobile sales contract which Branyon had theretofore executed to it, replevin could not be maintained. This is wholly untenable because the contract agreed to save Montgomery Ward Co. harmless as to the Chevrolet contract or any other, and when Branyon permitted the repossession by another he thereby breached the contract.
It is insisted further that no demand was made by the Chevrolet Company before the institution of the replevin suit, therefore the suit could not be maintained under the authority of Sackler v. Slade, 148 Miss. 575, 114 So. 396. In the case at bar the defendant in replevin gave bond for the property, appeared, and defended on the merits. In this state, under the authority of Dearing v. Ford, 13 Smedes M. 269; Newell v. Newell, 34 Miss. 385, and George v. Hewlett, 70 Miss. 1, 12 So. 855, 35 Am. St. Rep. 626, the rule is that where one is lawfully in possession of personal property, having a charge upon it or the like, a demand by the owner is necessary to perfect his right to maintain replevin; but, when sued, if the defendant stands his ground, and contests the right of property in the plaintiff, he cannot afterward change his position and rely upon the want of demand, or other merely preliminary step, as a defense.
In the case at bar the Chevrolet Company undertook to maintain its right to retain possession of the property by virtue of its retention title of the automobile to which the tires were attached. The case of Sackler v. Slade, supra, is not in point here for the reason that it was held in that case that the plaintiff could not repudiate a change of contract without notifying the defendant, by making demand, of his repudiation of his verbal contract; likewise it is not in conflict with the conclusion reached in the case at bar.
There is another contention that the tires in controversy are not separable from the automobile when attached thereto. This is wholly untenable. The contract made them separable and any man who drives a car will learn from practical experience that a casing is a separate instrumentality.
The judgment of the court below will therefore be affirmed.
Suggestion of error sustained. Affirmed.