Mayes v. Thompson, 91 So. 275

Mayes v. Thompson

91 So. 275 | Miss. | 1922

Smith, C. J.,

delivered the opinion of the court.

This is an action of replevin, in which the appellants were the plaintiffs and the appellee the defendant in the court below. At the close of the evidence the court refused to instruct the jury to find for the plaintiffs, but instructed it to find for the defendant. There was a verdict and judgment accordingly.

The property sought to be replevied is an automobile, which the appellants claim to have purchased from a man by the name of McComber; the consideration therefor being professional services rendered and to be rendered. The appellants are attorneys at law and McComber, while under arrest by the chief of police of Jackson, Miss., “on suspicion,” but without any charge having been made against him for the commission of any crime, employed the appellants to obtain his release and to defend him against any charge that might be brought against him. In order to compensate them therefor, he executed to Crisler a bill of sale for the automobile in question, valued by the appellants themselves at one thousand dollars, a diamond ring valued by them at three hundred and fifty dollars, two hundred dollars in cash, a typewriter, and a watch, the values of which do not appear from the evidence. The appellant obtained McComber’s release from custody before any formal charge was made against him, by having him to execute a bail bond in the sum of three hundred dollars, on which they were sureties, and on his release McComber disappeared, and has not been heard from since. On the day following the execution of this bond a charge of forgery was lodged with a committing magistrate by the police against McComber. No forfeiture has been taken on this bond, and its validity is challenged by the appellee

*571Some days after the automobile had been delivered to the appellants by McComber, the chief of police of Jackson, Miss., advised the appellants that the appellee claimed to be the owner of the automobile, whereupon it was delivered by them to the chief of police under what the appellants supposed ivas an agreement that it would be held by him until the appellee’s claim thereto should be adjusted, but it was thereafter delivered by the police to the appellee, and was then replevied by the appellants. The appellee lives in Hillsboro, Tex., and there sold the automobile to a man, who gave his name as Berger, for one thousand, six hundred and fifty dollars, accepting in payment therefor á draft, signed by the Union National Bank of Springfield, Mo., in favor of Berger, on the Hanover National Bank of New York City, for one thousand, six hundred and seventy-five dollars, and agreed to pay Berger the twenty-five dollars difference between the price of the automobile and the amount of the draft, when the draft should be collected.

No reservation of title to the automobile was retained by Thompson until the draft should be collected, but the draft Avas accepted in payment therefor. Berger immediately took possession of the automobile, and some months thereafter appeared with it in Jackson, Miss., under the name of McComber, where he Avas arrested as hereinbefore set forth. The draft given by Berger for the automobile Avas deposited by Thompson with his local bank for collection, and was afterwards returned to him by the bank; the reason given therefor by the bank being that “the check was turned doAvn.” There was no evidence that the draft was not drawn as it purports on its face to have been, or that it had been presented for payment to the Hanover National Bank.

The errors assigned are the refusal of the peremptory instruction requested by the appellants and the granting of the one requested by the appellee. One of the contentions of the appellee is that, because of the fraud perpetrated on him by Berger in giving him a worthless draft *572for the automobile, no title to the automobile passed to Berger, and consequently, since Berger could not convey to the appellants any greater right to the automobile than he himself possessed, the appellee is entitled to recover the possession thereof, notwithstanding that the .appellants may have purchased it from Berger without notice of the appellee’s right to reclaim it. This argument assumes that the draft was worthless, and for the purpose of an-SAvering it we Avill also so assume, though that question will be hereinafter dealt Avith.

If the transaction betAveen the appellee and Berger did not result in the transfer of the title to the automobile to Berger, but merely in the transfer of the possession thereof, the appellee is entitled to recover it, even against a tona-fide purchaser from Berger without notice; but, if it resulted in the transfer of the title to Berger, the appellee would have had the right to recover the car while it remained in Berger’s hands, but has no right to recover it against a bona-fide purchaser for value without notice. Preston v. Threefoot (Miss.), 24 So. 703 ; Benjamin on Sales (5 Ed.) 457 ; Williston on Sales, 1045.

The question for decision in this connection then is: Did the appellee intend to transfer to Berger the title to the car, or simply the possession thereof? The evidence leaves the answer to this question in no sort of doubt, for it is manifest therefrom that the appellee delivered the car to Berger in exchange for the draft with the intention of vesting him with the title thereto, and this intention can be in no wise changed by the fact; if such it be, that the appellee was induced so to do by a fraud perpetrated upon him by Berger.

The contentions of the appellants in effect are, first, that it does not appear from the evidence that the draft was worthless and that the burden of so proving was on the appellee; and, second, that they are bona-fide purchasers for value. The first contention is sound, for if the draft was drawn as it purports on its face to have been, and would have been paid on presentation, no fraud was per*573petrated on the appellee by Berger, and for that reason the judgment of the court below must be reversed. But it will be necessary for us to decide the second question also; for, if the appellants are entitled to recover possession of the automobile under the bona-fide purchaser for value rule, is will not be necessary to remand the cause, but final judgment can be rendered here.

The bona-fide purchaser for value rule had its origin in equity and is:

“That a purchaser in good faith for a valuable consideration and without notice of the prior adverse claims is protected against certain suits brought by the holders of such claims. The essential elements Avhich constitute a bona-fide purchase are therefore three — a valuable consideration, the absence of notice, and the presence of good faith.” 2 Pom. Eq. (4 Ed.), section 745.

We are concerned here with the first of these elements only, for the appellants purchased the automobile without notice and in good faith.

The promise of the appellants to render to McComber the services contracted for is a valuable consideration within this rule, but only a small part of such services Lave been in fact rendered, to-wit, the obtaining of McComber’s release on bond, and not only must the consideration be valuable, but it must have been paid, or, if it consists of a promise, the promise must have become irrevocable before notice of a prior claim. The appellants will be under no obligation to render any further services to McComber in event the appellee recovers the automobile, so that the question for decision is whether the appellants are entitled to protection because of the partial performance of their contract with McComber, and, if so, to what extent. That a purchaser so situated is protected is settled in this and most of the other jurisdictions, but to what extent is sometimes a difficult question, and must be determined in each case by the relative equities of the adverse parties. 2 Pom. "Eq. (4 Ed.), section 750 ; 23 A. & E. Ency. of Law (2 Ed.), section 521. This protection may be accorded, either by permitting the purchaser to retain a proportionate part *574of the property purchased (Durst v. Daugherty , 81 Tex. 650, 17 S. W. 388), by giving him a lien on the property purchased to the extent of the consideration actually paid (Servis v. Beaty, 32 Miss. 52), or by permitting the purchaser to retain the property and giving to the prior owner or lienor a lien thereon to the extent of the unpaid purchase money (Parker v. Foy, 43 Miss. 260, 5 Am. Rep. 484).

What are the relative equities of the adverse parties here? The appellants have rendered a service to Mc-Comber, to-wit, the obtaining of his release from custody, for which they are entitled to compensation; and they are also entitled to protection against any liability they may have incurred on the bail bond. The aggregate value of the property received by them from McComber is one thousand, five hundred and fifty dollars, and the value of the appellee’s interest therein, to-wit, the automobile, is one thousand dollars. Should the automobile be awarded to the appellee, there will remain the two hundred dollars in money and the diamond ring, worth three hundred and fifty dollars, and, even should the appellants be called on to pay the penalty of the bail bond, there will remain two hundred and fifty dollars, which will fully compensate them for the services actually rendered. A resort to the automobile, therefore, is not necessary, in order that the appellants may be fully protected, and, in event it shall be made to appear on another trial that the draft given the appellee by Berger for the automobile was .worthless, the automobile should be awarded to the appellee.

One of the appellants’ contentions is that, for aught that appears to the contrary, the ring may have been fraudulently obtained by McComber, and they may be called on to surrender it also; but this contention is without merit, for the court must act on proof, and not on speculation.

The foregoing views will enable the court below to fully dispose of the cause when it shall be returned thereto, without our deciding the other questions raised by counsel-fertile appellee.

Reversed and remanded.