Opinion
No. 34541.
September 22, 1941. Suggestion of Error Overruled October 13, 1941.
1. PRINCIPAL AND AGENT.
A person carrying on business of a gasoline filling station is a "trader" within business sign statute providing that property used or acquired in a trader's business should be treated, in favor of his creditors, as his property unless interest of others therein was disclosed by sign (Code 1930, sec. 3352).
2. PRINCIPAL AND AGENT.
Where operator of gasoline filling station sold soft drinks, beer, and cigarettes, and operated a bar and dance hall in connection therewith, operator of station was a "trader" within business sign statute, and refrigerators used in his business were to be treated, in favor of his creditors, as his property, as against claim of conditional seller thereof. (Code 1930, sec. 3352).
3. REPLEVIN.
In replevin, punitive damages and expenses incurred in defending action cannot be recovered by defendant unless plaintiff's action was characterized by willfulness, malice, or fraud.
4. REPLEVIN.
The fact that plaintiff was unsuccessful in replevin action furnished no basis, in absence of any showing of malice or oppression, for imposition of punitive damages against plaintiff in excess of nominal sum of $1.
APPEAL from the circuit court of Jackson county, HON. L.C. CORBAN, Judge.
Albert Sidney Johnston, Jr., of Biloxi, for appellant.
Conditional sale contracts are not required to be recorded in Mississippi for protection of vendor, except where the property conditionally sold remains in the possession of the vendee for longer than three years. Section 3345, Miss. Code of 1930; Jennings v. Wilson (Miss), 14 So. 259, 71 Miss. 42; American Hoist Derrick Co. v. Lynn, 167 Miss. 93, 148 So. 351; Mitchell v. Williams, 155 Miss. 343, 124 So. 430; In Re Agnew, 178 Fed. 478, 3 Sm. M. 560; Mask v. Allen (Miss.), 17 So. 82; Harrison v. Broadway Motor Co., 128 Miss. 766, 91 So. 453; Burkhalter v. Mitchell, 107 Miss. 92, 64 So. 967; United States Motor Truck Co. v. Southern Securities Co., 131 Miss. 664, 95 So. 639; Fairbanks Co. v. Graves, 90 Miss. 453, 43 So. 675.
Purchaser at execution sale acquires no better title than had the judgment debtor, and maxim caveat emptor applies. Harrison v. Broadway Motor Co., 128 Miss. 766; Armistead v. Bernard, 62 Miss. 180; Tufts v. Stone, 70 Miss. 54, 11 So. 792; Section 3048, Miss. Code of 1930; Section 122, 10 R.C.L. 1324; Walton v. Hargroves, 42 Miss. 18; Davis v. Hamilton, 50 Miss. 213; Bramlett v. Wetlin, 71 Miss. 902; Taylor v. Lowenstein, 50 Miss. 278; Adams v. Harris, 47 Miss. 144; Harper v. Tapley, 35 Miss. 506; Taylor v. Eckford, 22 Miss. 21.
Conditional Sales Contracts — Not required to be recorded in Mississippi. Registry statutes do not require conveyances of personal property to be recorded. Section 2135, Code of 1930; Section 2146, Code of 1930; Section 2147, Code of 1930; Journey v. Priestley, 70 Miss. 584; Parker v. Payne, 95 Miss. 375; Burkhalter v. Mitchell, etc., 107 Miss. 92; Mount v. Harris, 1 Sm. M. (9 Miss.) 185; U.S. Motor Truck Co. v. Sou. Securities Co., 131 Miss. 664; Rossmechan Brake Shoe Foundry Co. v. Pascagoula Ice Co., 72 Miss. 608, 18 So. 364; Fairbanks v. Graves, 90 Miss. 453; Young v. Salley, 83 Miss. 363; American Hoist Derrick Co. v. Lynn, 167 Miss. 93; Mitchell v. Williams, 155 Miss. 343; In Re Agnew, 178 Fed. 478.
Conditional Sales Contracts — Levy by creditors on property sold after condition broken, and within three years, vests no title in purchaser. Thomas Williams H. Mount v. Osmond Harris, 1 Sm. M. 185, 3 Sm. M. 560; Mask v. Allen (Miss.), 17 So. 82.
Sign statute, inapplicable except to traders and persons ejusdem generis. Orr v. Jackson Jitney Car Co., 115 Miss. 140, 75 So. 945; Olivier v. Ferguson, 112 Miss. 521; Wolf v. Kahn, 62 Miss. 814; U.S. Motor Truck Co. v. Sou. Securities Co., 131 Miss. 664; Fairbanks v. Graves, 90 Miss. 453; Tufts v. Stone, 70 Miss. 54; Watts v. Ainsworth, 89 Miss. 40; Yale v. Taylor, 63 Miss. 598.
Conditional Sale vendor entitled to replevy property from purchaser at execution sale. Tufts v. Stone, 70 Miss. 54, 11 So. 792; Armistead v. Bernard, 62 Miss. 180; Burkhalter v. Mitchell, 107 Miss. 92; Campbell v. Brooks, 93 Miss. 853; Blumfield v. Hoover, 90 Miss. 502; Woolner v. Spaulding, 65 Miss. 204; Conn v. Bernheimer, 67 Miss. 498.
Sign Statute of Mississippi applies only to traders and persons ejusdem generis, and conditional sale vendee of personal property for his own use is not a trader within the meaning of the Business Sign Statute. Carnaggio Bros. v. Greenwood, 142 Miss. 885; Columbus Buggy Co. v. Turley, 73 Miss. 529; Watts v. Ainsworth, 89 Miss. 40; Parry Mfg. Co. v. Lowenburg, 88 Miss. 532; Tufts v. Stone, 70 Miss. 54; U.S. Motor Truck Co. v. Sou. Securities Co., 131 Miss. 664; Fairbanks Co. v. Graves, 90 Miss. 453, 43 So. 675.
In replevin action, defendant is only entitled to damages upon a showing of malice, fraud, willfulness or oppression, which must appear by record evidence. Thornton v. Gardner, 134 Miss. 485; Mars v. Germany, 135 Miss. 387; Cowden v. Lockridge, 60 Miss. 385; Taylor v. Morton, 61 Miss. 23; Whitfield v. Whitfield, 40 Miss. 352; Heard v. Jones, 49 Miss. 236.
In replevin action, defendant is never entitled to punitive damages in the absence of evidence showing insult, oppression, or the like, and it is error to submit to the jury the right to punitive damages without such evidence. Ill. Cent R. Co. v. Brookhaven Machine Co., 71 Miss. 663.
Ford Ford, of Pascagoula, for appellee.
A person who sells and delivers fixtures to a trader for use in the trader's business, but reserving title thereto only by unrecorded conditional sales contracts, is not entitled to replevin same from a bona fide purchaser who buys them for value at an execution sale of the trader's store fixtures. Section 3352 of the Mississippi Code of 1930; B.F. Goodrich Rubber Co. v. Breland, 170 Miss. 117, 154 So. 303; Louisiana Oil Corporation v. Robbins, 169 Miss. 39, 152 So. 846; Paine v. Hall Safe Company, 64 Miss. 175; Merchants Farmer Bank v. Schaaf, 108 Miss. 121, 66 So. 402; Quin v. Myles, 59 Miss. 375; Gumbel v. Koon, 59 Miss. 264; Durant Motor Company v. Simpson, 160 Miss. 313, 133 So. 672; Fitzgerald v. American Manufacturing Company, 114 Miss. 580, 75 So. 440; Payne Hardware Company v. International Harvester Company, 110 Miss. 783, 70 So. 892; In re Waynesboro Motor Company, 60 F.2d (Miss., D.C., 1932) 668.
The assignor and endorser of a negotiable instrument is not entitled to bring any suit or action to foreclose upon or recover any collateral security or personal property pledged as security for the payment of the instrument, when such assignor has sold and delivered said instrument to a third person. Sections 2686, 2687, 2690, and 2853 of Mississippi Code of 1930.
Where suing out of writ of replevin by plaintiff was willful wrong on its part, an act of fraud, malice, or oppression, defendant was entitled to have submitted to jury question whether he should recover, as punitive damages, attorneys' fees, loss of time, and expense of attending Court. Smith Chevrolet Co., Inc., v. Finch, 150 Miss. 854, 117 So. 258.
Argued orally by Albert Sidney Johnston, Jr., for appellant.
This is a replevin suit in which appellant, as plaintiff, sought to recover possession of two electric refrigerators which had been purchased by the defendant, Frederic, at an execution sale. This sale was made under a judgment against one J.J. Kersenac, who operated a place of business known both as "Kersenac's Place" and as "Snug Harbor."
The declaration alleged and the evidence disclosed that the property was sold to Kersenac by plaintiff under contracts of conditional sale with the title retained by Ellzey. The contracts were not recorded. Recovery is sought by virtue of the retained title; it is resisted by defendant upon the ground that Kersenac was conducting business as a trader, and that this property was "used or acquired in such business" under our Business Sign Statute, Code 1930, Sec. 3352, and is, therefore, subject to his debts and is "in all respects treated in favor of his creditors as his property."
From the meager testimony as to the character of the business, it is gathered that Kersenac conducted a gasoline filling station, sold soft drinks, beer, and cigarettes, and operated a bar and a dance hall in connection therewith. Kersenac testified that he used the refrigerators in his business.
One who carries on the business of a gasoline filling station is a trader within the meaning of Section 3352. Louisiana Oil Co. v. Robbins, 169 Miss. 39, 152 So. 846. See also B.F. Goodrich Rubber Co. v. Breland, 170 Miss. 117, 154 So. 303. This section subordinated in favor of creditors of a trader the rights of a conditional vendor under an unrecorded contract retaining title. See Paine v. Hall Safe Lock Co., 64 Miss. 175, 1 So. 56, and numerous later authorities. Under the evidence the integration of the several services and activities into the business known as "Kersenac's Place" subjects property used or acquired therein to liability to creditors under the Business Sign Statute. Quin v. Myles, 59 Miss. 375; FitzGerald v. American Mfg. Co., 114 Miss. 580, 75 So. 440. The peremptory instruction given for the defendant was proper.
With the defendant's plea of the general issue he gave notice of certain consequential damages which he expected to prove upon the hearing of the replevin action. Such alleged damages were "$75 as attorney's fees, and $125 actual damages for expenses incurred in attending Court and defending this suit, and punitive damages." None of such damages are recoverable unless the action by plaintiff was characterized by wilfulness, malice, or fraud. Mars v. Germany, 135 Miss. 387, 100 So. 23. The proceedings in replevin were filed by plaintiff's attorney in the exercise of his own discretion. No inference of malice arises from the mere circumstance that a plaintiff, employing the process of a court in a civil action, ultimately loses his suit. No malice or oppression was sought to be shown otherwise. Plaintiff requested, and was refused, the following instruction: "The court instructs the jury for the plaintiff that if you find for the defendant in this cause, you shall only award him nominal damages of $1." All other instructions on the question of damages asked by plaintiff and refused, concluded with the same language. Plaintiff was entitled at least to the instruction as written. Whether he was entitled to more is not presented and, therefore, not decided. The judgment will be affirmed as to appellee's right to retain the property, but reversed as to the amount of damages, and the award to appellee is reduced to the sum of one dollar.
Affirmed in part, and reversed in part.