3 So. 2d 849 | Miss. | 1941
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. *638 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,
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 *639
fraud. Mars v. Germany,
Affirmed in part, and reversed in part.