152 So. 846 | Miss. | 1934
By virtue of a judgment in favor of the appellant, Louisiana Oil Corporation, against I.L. Bratton, an execution issued, and the sheriff levied on gasoline and oil found in the possession of Bratton. Robbins made claims to the property, issue was made up and tried in the circuit court, whereupon a peremptory instruction in favor of the claimant, Robbins, was granted; and the appellant, Louisiana Oil Corporation, prosecutes an appeal from the judgment resulting.
Prior to January 1, 1933, Bratton operated a filling station, which was owned and rented to him by the claimant, Robbins, selling thereat motor oil, tires (on commission), and coca cola. On January 1, 1933, Bratton being unable to pay the rent, Robbins agreed to furnish Bratton gasoline and motor oil to sell, Bratton to collect *42 for the oil and gas and retain a fixed commission for selling the same, and to pay Robbins therefor after the sale. The sign under which all the trading was conducted was "City Service Station;" and Bratton continued to sell tires, gas, motor oil, and coca cola as before. Robbins paid the privilege tax license for the sale of gasoline and motor oil — in other words, according to the evidence of both of them they had property in the business, although the business was actually conducted by Bratton before and after 1933. The execution was levied in May of that year.
Under this state of facts, as far as the creditors of Bratton are affected, the property acquired in that business by Bratton as a trader before and subsequent to January 1, 1933, was liable for the payment of his debts, and, as to his creditors, could be treated as his property. In that situation, Robbins could have protected himself by placing a sign at the place of business with his own name thereon, thereby disclosing his ownership in the property there found. Section 3352, Code 1930.
The decision of this case is controlled by Loeb Bloom v. Morton Co.,
The case of Adams v. Berg,
The appellant was entitled to the peremptory instruction requested by it, and judgment accordingly will be entered here.
Reversed, and judgment for appellant.