Hattiesburg Auto Sales Co. v. Morrison
101 So. 690
Miss.
1924
Check Treatment
Ethridge, J.,

delivered the opinion of the court.

The appellee sued the appellant for the value of a certain Buick car described in the declaration, the plaintiff alleging: That he had loaned his car to a certain person for a day or two to be used around Hattiesburg, Miss. That shortly thereafter he had information that said person intеnded to abscond with said car. That upon receiving such information he, the plaintiff, commenced a diligent search to locate his said car before said party carried out his purpose. That рlaintiff did finally find *635the car stored in the garage of the defendant in Hattiesburg, Miss., in which garage said^car had been stored by said person to whom the car had been loaned. Hpon finding and identifying said car the plaintiff rеquested defendant to deliver to him the possession of his- said car, that defendant refused to so deliver said car to the plaintiff, and that plaintiff then notified'defendant that said car so held in storage, and whiсh was a Little Six Buick automobile, the same being No. 2.8,924, was the property of the plaintiff and not the prоperty of the person who left it for storage at defendant’s garage. That plaintiff served notice on the defendant and forbade it to deliver-possession of said automobile to the said persоn who ‍​​​‌​‌​‌​‌‌​‌‌​‌​​‌‌‌​​‌‌​‌​​‌‌​‌‌​​‌‌​​‌‌‌‌‌​​‌‍stored, it or to any one else, except to plaintiff. That in disregard of such instructions and the faсt that defendant had notice that said automobile did not belong to the person who stored it and over the protest and objection of plaintiff, the defendant wrongfully delivered said automobile to said рerson who had stored it in defendant’s garage, and said person, after secretly and clandestinely securing1 possession of said automobile, absconded and left the country with it, and although plaintiff has made diligent search and inquiry he has been wholly unable to locate his said automobile, wherefore he brings suit аnd demands judgment in the sum of five hundred dollars. The defendant filed a plea of the general issue.

The plaintiff’s tеstimony supported the declaration, he testifying* expressly that he notified the defendant that the autоmobile was stolen and that it was the plaintiff’s property, and not the property of the person storing it in defendant’s garage, and that he notified the defendant not to'deliver his said automobile to the person so storing same. The .defendant testified that the said named person came to the garage in сompany with the plaintiff and placed the car in the garag’e as his automobile for the purpоse of having the same repaired; that defendant issued a ticket to said person under the practice and rule *636of the defendant by which the defendant had'duplicate checks, one of which was dеlivered to the person storing the automobile and the other attached to the car; that defendant’s rule was that it would not deliver any automobile to any person who did not have such duplicate check but would deliver it to whoever presented ‍​​​‌​‌​‌​‌‌​‌‌​‌​​‌‌‌​​‌‌​‌​​‌‌​‌‌​​‌‌​​‌‌‌‌‌​​‌‍the duplicate check. The contents of the сheck, or whatever it was, do not appear in the record other than as stated. Issue was submitted tо the jury on proper instructions and the jury returned a verdict for the plaintiff. The facts are therefore established in accordance with the plaintiff’s declaration.

It is contended by the appellаnt, who ivas defendant below, that defendant was entitled to a peremptory instruction under a rule statеd in the brief of appellant as follows :

“A bailee by executing a receipt to the bailor for the bailed property admits the right of possession in the bailor, and is thereafter estopped from ‍​​​‌​‌​‌​‌‌​‌‌​‌​​‌‌‌​​‌‌​‌​​‌‌​‌‌​​‌‌​​‌‌‌‌‌​​‌‍denying what has been thus admitted. The bailee cannot thereafter avoid the force of his own agreеment by showing title in a third party. ’ ’

This‘quotation is an excerpt from 33 L. R. A. (N. S.) 695, which cites Reed v. Reed, 13 Iowa, 5.

In our opinion the plaintiff was entitlеd to recover on establishing that he served notice on the defendant before he delivered the property to the alleged bailor, that said property was stolen and belonged to the plaintiff, and that he, the plaintiff, instructed the defendant not to deliver said stolen property to said bailor. Whеre the property is stolen property, and ‍​​​‌​‌​‌​‌‌​‌‌​‌​​‌‌‌​​‌‌​‌​​‌‌​‌‌​​‌‌​​‌‌‌‌‌​​‌‍the fact is made known to the bailee before hе delivers custody of the property, and he is requested to retain said property for the plaintiff оr his order, the bailee would not be authorized to redeliver the property to the bailor without giving plаintiff notice to appear and contest his claim or to take legal proceedings to еstablish his claim to the property. In *637such case the bailee would retain the property until the issue was settled either by agreement or by appropriate proceeding’s. The bailor could not acquire title to stolen property, and having no title he could confer none upon the baileе as against the true owner of the property. We think this principle is settled in this state by Abasi Bros. v. L. & N. R. Co., 115 Miss. 803, 76 So. 665, L. R. A. 1918B, 652. Certainly the bailee could justify refusal ‍​​​‌​‌​‌​‌‌​‌‌​‌​​‌‌‌​​‌‌​‌​​‌‌​‌‌​​‌‌​​‌‌‌‌‌​​‌‍to deliver property to the bailor under this decision.

Affirmed.