Opinion
No. 35857.
May 14, 1945.
REPLEVIN.
In replevin to recover furniture which plaintiff claimed as sold to a third person under contract reserving title in plaintiff until paid for, evidence identifying furniture as that sold by plaintiff was insufficient for jury in view of defendant's uncontradicted testimony that he bought the furniture from an unknown person who had it on truck offering it for sale, and verdict for plaintiff could not be permitted to stand.
APPEAL from the circuit court of Sunflower county, HON. S.F. DAVIS, Judge.
H. Lee Herring, of Ruleville, and B.B. Allen, of Indianola, for appellant.
The appellee sold to Joseph and Annie B. Baker property described in a retention title contract as: "1 4 piece bed suite $119.50; 1 springs $6.95." This was all the description in the sales contract. In the "affidavit," the writ and the returns, as well as the judgment, there was given from memory a more detailed description: "one bed of the value of $40.00; one set of bed springs of the value of $6.90; one vanity dresser of the value of $28.50; one seat to match of the value of $3.00; one chest of drawers of the value of $16.00; of the total value of $94.50." The description contained in the contract and the affidavit is not sufficient to identify the property and is void.
Cowden v. Lockridge, 60 Miss. 385; Garmon v. Fitzgerald, 168 Miss. 532, 151 So. 726.
The affidavit in replevin in this case was not the personal affidavit of appellee, but was sworn to by "Sol H. Klumok By: R.L. Clark, Agent." This affidavit is, therefore, void, as not being the personal oath of appellee. An oath cannot be made by one man for another; it must be personal.
Downing et al. v. Campbell, 131 Miss. 137, 95 So. 312.
As in the case of absolute sales and chattel mortgages, a description of the property which is the subject of the conditional sale is essential.
National Foods, Inc., v. Friedrich, 173 Miss. 717, 163 So. 126; Evans v. Junius Hart Piano House, 140 Miss. 467, 106 So. 9; Burroughs Adding Mach. Co. v. Robertson, 9 F.2d 619; Tilton v. H.M. Wade Mfg. Co., 2 F.2d 358; In Re Thaler, 1 F.2d 461; 55 C.J. 1203, Sec. 1181.
The court erred in not sustaining our motion to exclude the evidence when plaintiff rested, and in overruling our peremptory instruction.
No damages may be recovered in a replevin suit unless the acts of the other party were attended by acts of fraud, malice, oppression, or willful wrong.
Thornton v. Gardner, 134 Miss. 485, 99 So. 131; Mars v. Germany, 135 Miss. 387, 100 So. 23.
Neill, Clark Townsend, of Indianola, for appellee.
The questions presented are: (1). (a). Was the furniture seized under the replevin writ the same furniture covered by appellee's contract of sale and moved by Joseph Baker and Annie B. Baker from Woodburn plantation near Indianola to the C.H. Aldridge plantation near Doddsville, in the month of February, 1943, or (b) Was the furniture seized bought by appellant, Eddie Williams, from a stranger in Doddsville, from a pickup truck just before Christmas in the year 1943; and (2). Was the description of the property covered by the retained title contract, the affidavit and the writ of replevin sufficient to sustain the action of replevin?
The first question was submitted under the proper instructions to the jury and the jury returned a verdict for appellee, Sol H. Klumok. On the record in this case such finding of fact by the jury was proper, and the same should not be disturbed.
The second question presented in the courts below was the question of insufficient description in the retained title contract, the affidavit in replevin, the writ, and the proof. It will be remembered that appellant did not claim title to the furniture seized, as an innocent purchaser for value, from Joseph and Annie B. Baker, nor did he claim that the furniture seized was the particular furniture. Appellant, therefore, is not a purchaser for value of the furniture involved in the suit, but occupies the position of an utter stranger or trespasser. As between the parties, a description of the property is sufficient, if it so identifies the chattels that the mortgagee or lienor may, with a reasonable degree of certainty, identify the property.
Bank v. Stewart, 106 N.W. 969; Hardwick v. Atkinson, 58 P. 747; Hamilton v. Miller, 26 P. 1030.
The appellant in this case, claiming the title to the suite of furniture, not from Joseph and Annie B. Baker, the purchasers of the property, but from an utter stranger, and claiming further that the property is not the same property covered by the contract of Joseph Baker and Annie B. Baker, claims an adverse title and cannot complain of the description in the contract and pleading and occupy the position of an innocent purchaser for value, as such position is entirely contrary to the position assumed by appellant in the courts below, and entirely contrary to any proof introduced by appellant. Had appellant claimed the title to the furniture through Joseph Baker and Annie B. Baker, or their assigns, and claimed that he purchased the property without notice of the rights of appellee herein, this question might have been pertinent.
Counsel first raises the question here as to the insufficiency of affidavit, claiming that the affidavit having been made for the principal by an agent is insufficient. No objection to the affidavit was made in the courts below, and this question is presented here for the first time. No objection having been interposed by appellant in the courts below to the affidavit in replevin, and issue having been joined, the trial had, and judgment rendered, any form of defect in pleading was cured under the provisions of our statute of jeofails, and the numerous cases thereunder decided by this court.
This is an action of replevin begun in the court of a justice of the peace, in which the appellee seeks, and was permitted in the court below, to recover several pieces of bedroom furniture. Several questions are presented by the appellant's assignment of errors, but as the conclusion we have reached as to one of them will dispose of the case, it will be stated only with reference thereto. The evidence discloses that the appellee sold to Joseph and Annie B. Baker one four-piece bed suite and one bed springs for $139.10, on which Baker paid $30 when the sale was made and $15 thereafter. The sale was evidenced by a written bill of sale in which the appellee reserved title to the furniture until the balance due thereon by Baker should be paid. This payment Baker failed to make, and about a year and ten months after the sale was made, this action in replevin for the recovery of the furniture was brought by the appellee against the appellant.
The appellee's evidence discloses that this suite of furniture consisted of one bed, one set of bed springs, one vanity dresser, "one seat to match," and one chest of drawers. No seat to match the vanity dresser was found by the officer executing the writ of replevin. Baker did not testify, and the evidence by which the appellee sought to identify the furniture was that of his employee who sold it, who stated that the appellee did a large retail furniture business, had and sold other suites of furniture similar to that here in question, and that the furniture here seized by the constable was that which he, the witness, had sold the appellant. There were no marks, and nothing peculiar about or on this furniture, that would distinguish it from other furniture sold by the appellee of the same pattern. The appellant testified, with corroboration by other witnesses, that he purchased the furniture from an unknown person who had it on a truck at Doddsville offering it for sale, and that of another witness who stated that she had seen the furniture purchased by Baker from the appellee, and that here in question, and that they were not the same. At the conclusion of the evidence, the appellant requested, but was refused, a directed verdict in his favor. Had the furniture remained in the possession of Baker, the identification of it by the appellee's salesman would have been stronger, but as it did not remain in Baker's possession, and what he did with it does not appear, the identification of it attempted by this salesman is weak, for, as hereinbefore stated, he only claimed to identify it from his recollection of its type and character, and not by any marks on it or anything peculiar to it. In view of this fact, the appellant's uncontradicted testimony must be accepted, and a verdict in the face of it, based on the evidence for the appellee, cannot be permitted to stand. The appellant's request for a directed verdict should have been granted.
Reversed and judgment here for the appellant.