Mississippi Supreme Court, 1932

McCraney v. McLaurin

Mississippi Supreme Court · Decided March 28, 1932 · Ethridge

140 So. 524; 162 Miss. 897; 1932 Miss. LEXIS 178 (Southern Reporter)

Counsel

G.H. Banks and E.R. Wall, both of Newton, for appellant. Correspondence of three persons must be excluded under the general principle respecting res inter alios acta, unless the party against whom the communications are tendered is in some way connected therewith or knew and approved their utterance. Title Guaranty Surety Co. v. Bank of Fulton, 89 Ark. 471 , 117 S.W. 537, 33 L.R.A. (N.S.) 676; 10 R.C.L. 1147, pars. 351-352. A self-serving declaration is no more admissible when reduced to writing than when uttered orally. Fearing v. Kimball, 4 Allen, 125, 81 Am. Dec. 690; Kane v. Chicago B. Q.R. Co., 90 Nebr. 112, 132 N.W. 920, Ann. Cas. 1913A, 764, 36 L.R.A. (N.S.) 1145; Dempsey v. Dobson, 174 Pa. St. 122, 34 A. 459, 52 A.S.R. 816, 32 L.R.A. 761; 13 L.R.A. 419. The star witnesses for the defendant in the trial below, namely, McMullan and Parker, officials and agents of the McMullan Motor Company admitted every material contention the plaintiff in agreeing to take the car and hold it and giving him an opportunity to redeem it by paying the small balance due. In other words, touching the pertinent facts of the case at issue in the lower court, there was no material conflict in the testimony. These witnesses admitted that they agreed to hold the car and gave appellant a chance to redeem it by paying the balance due. They admitted that he did appear in a few days and tender to them the balance due. They admitted that the investment company did not resell the car but the resale was made by the McMullan Motor Company. All testimony permitted by the trial court over the objection of appellant touching the investment company in connection with the case in any way was error; and all instructions with reference to the investment company in connection with the case were erroneous instructions and could have no other purpose than to confuse and mystify the minds of the trial jury in the court below. J. Knox Huff, of Forest, for appellee. The property rights of the appellant to the car were founded upon and limited by, the conditional sale agreement. By it title to the car was retained in seller and transferred by the assignment to Industrial Investment Company, of Jackson, Miss. By it only delivery was made to appellant, and agreement to pass title to him was conditioned upon, "all payment, agreements, terms and conditions" thereby imposed upon appellant being "promptly and faithfully made, done or performed." By it also appellant's possession of the car depended upon his keeping and performing "each and every provision and condition" thereof. In the case of a conditional sale, if the condition of payment is not strictly performed, at or before the time limited, the right is gone forever, and there is no subsequent power of redemption. Weathersley v. Weathersley, 40 Miss. 462 . The instrument under which appellant and the Industrial Investment Company were operating in their transaction is a condition sale contract and not a chattel mortgage. Mitchell v. Williams, 124 So. 430 , 155 Miss. 343 and authorities there cited.

Opinion of the Court

*900 Ethridge, P. J.,

delivered the opinion of the court.

J. B. McCraney, the appellant, filed a suit in replevin and sued out a writ for the repossession of one Ford type body Tudor automobile, motor No. 2112201, model 1929, tag No. 220-316, alleged to be the property of the appellant and unlawfully detained by J. P. McLaurin, of the value of four hundred dollars, to which declaration McLaurin pleaded the general issue.

It appears from the record and the exhibits to the declaration that McCraney purchased the automobile in question from the McMullan Motor Company of Lake, Mississippi, paying part cash and executing notes payable monthly for the balance of the purchase money. In the contract of sale it was provided that the title should not pass to McCraney until the full amount due under the notes had been paid, and that, in default of payment, the seller might repossess the car and sell same at public or private sale, and that the payments made by McCraney should be forfeited as liquidated damages for the non-fulfillment of the agreement or contract.

The notes were payable at the office of the Industrial Investment Company named in the contract, at Jackson, Mississippi, and the notes taken for the deferred payments were assigned with recourse to the investment company at Jackson, Mississippi.

McCraney paid eight of the notes, but failed to pay the other notes, and, on the 7th day of August following the execution of the contract of sale, the McMullan Motor Company’s officers and employees went to Newton where McCraney lived and demanded possession of the automobile, and it was delivered to them. There is a d'spute as to what occurred at the time of the repossession of the automobile.

*901 The agents and officers of the McMullan Motor Company testified that they agreed to hold the automobile for the balance of the week to permit McCraney to raise the money to pay the unpaid notes. McCraney contended, and his witnesses testified, that the agreement was that they would store the automobile and hold it until McCraney could raise the money, without any definite time being fixed in which to do so, and that he did, in October following, raise the mdney and offer to pay McMullan Motor Company the balance due them, and that they would not deliver the automobile nor tell him where it was, but merely told him that he had no automobile.

After the expiration of a week from the time the automobile was repossessed, the McMullan Motor Company delivered same to the investment company .at Jackson, Mississippi, and on August 19, 1930, the investment company, in the presence of . one of the officers of the Mc-Mullan Motor Company, addressed a letter to J. P. Mc-Craney dated August 19, 1930, in which they notified him that they held the car in storage and had held it a ; long as it was possible for them to do so, and that the secretary and treasurer was instructed to clear out all delinquent accounts, and that it was necessary to make an immediate sale of the automobile unless the balance of one hundred fifty-four dollars and forty-one cents was paid, and requested advice regarding this matter as they could not continue the account longer. McMullan test'fied that he was present when this letter was written and signed, and saw it mailed in the box in front of the office, and that he was given a copy of the letter, which copy was offered in evidence after demand to produce the original of said letter. McCraney and his wife testified that they never received this letter and that the first they knew of it was on the trial when the copy was offered in evidence.

*902 There was a. verdict for the defendant, and judgment accordingly, from which this appeal is prosecuted.

The action of replevin is founded on the right to possession at the time of the institution of the suit. At the time this suit was instituted, under the terms of the contract, McCraney’s right to possession had been forfeited if the evidence for the defendant on the trial is to be tai en as true, and the jury, by their verdict, found it was true.

The court, we think, by instruction, submitted to the jury the plaintiff’s legal right on the evidence introduced by him.

As we view it, the jury had the right to decide according to their verdict, on the conflicting evidence, and we find no ground that would justify a reversal of the case. The judgment will therefore be affirmed.

Affirmed.

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