77 Tenn. 81 | Tenn. | 1882
Lead Opinion
delivered the opinion of the court.
This action was ^commenced by Guild, Church & Co., against M. A. McCombs, before a justice of the peace by warrant, “ in a plea of debt by account.” Upon appeal to ' the circuit court, the regular judge being engaged in the trial, of a cause, the parties agreed that the cause might be tried by C. W. Heiskell, an attorney of the court, as special judge. This is the substance of one entry on the minutes. The bill of exceptions says that the parties agree to submit the case to C. W. Heiskell, Esq., “ appointed by the court, with the consent of both parties, a special judge,” without the intervention of- a jury, the judgment to be entered as the judgment of the court, “both parties reserving the right to appeal from the same to the Supreme Court as if the case had been regularly called and tried by the circuit judge.” The special judge rendered judgment for the plaintiffs below, and
The first point made is that the judgment is not •one from which an appeal can be taken. But no motion was made to dismiss the appeal, and a majority of the court think that the objection comes too late. ' I have grave doubts of the jurisdiction of the -court in such a case.
On September 25, 1875, the plaintiffs, in Boston, sold to C. S. Cooper, of Memphis, Tennessee, a piano at the price of $325, of which $27.12 were paid in cash, and the residue secured by eleven notes of the purchaser for $27.08 each, payable at intervals of a month for the .next eleven .months, with 7 per cent interest. The contract, which was in writing signed by the purchaser, provided that the piano should remain the property of the plaintiffs until all of the payments were made, with the right on their part, in case of failure to. pay, or if the purchaser should “ remove the same from the house No. —, or sell, mortgage or convey the same in any manner, without their written consent,” to take the piano back. The purchaser brougnt the piano to Memphis, and kept it '“in a sewing machine store for sale, where persons desirous of purchasing pianos examined and tried it; he also .kept other pianos there.” On October 3, 1875, Cooper, through one L. Schunck, sold the piano to the defendant for $500, which was paid in another piano worth. $100, and the residue in cash. The defendant had no knowledge of the contract between.
It has ^uniformly been held in this State that a contract for the sale of personal property, by which the possession is delivered to the purchaser but the title retained in the seller until the purchase money be paid, is valid, and if the purchaser dispose of the property before the title is vested in him by the payment of the purchase money, the original owner may follow it into the hands of the third party: Houston v. Dyche, Meigs, 76: Gambling v. Read, Meigs, 281; Price v. Jones, 3 Head, 84; Holmark v. Molin, 5 Cold., 482. And although the contract of sale be reduced to writing, it need not be registered: Bradshaw v. Thomas, 7 Yer., 497; Buson v. Dougherty, 11
In Gambling v. Read, it was said by the court that possession of personal property is only prima fa-cie evidence of title, and will not protect the purchaser against the claim of the true owner, except in a few cases provided for in law, where it has been of such a character as is calculated to .impose upon creditors and subsequent purchasers. Some of these cases are noticed by the eminent judge who delivered the opinion of the court in Taylor v. Pope, 5 Cold., 416. They are usually cases in which possession is connected with an apparent power to sell superinduced by the acts of the owner, or by coupling the possession with the usual indicia of title with authority to convey, as in the case of certificates of stock with a power of attorney to transfer on the books of the corporation endorsed thereon: Cherry v. Frost, 7 Lea, 1. It is insisted that the facts in this case bring it within the exceptional class.
This position rests upon the ground that the agreed statement of facts shows that the piano was kept by the original vendee in a sewing machine store for sale,
The contract for the conditional 'sale of the piano in this case not only does not confer upon the purchaser the power of sale, but fairly implies a prohibition to sell. And there is nothing in the agreed statement of facts to show that the contract was other than what it purports to be on its face. The question, therefore, comes to this, does the fact that the purchaser offered the piano for sale in a sewing ma
The sale by the plaintiffs to Cooper was on the 25th of September, 1875, and by Cooper ^to the defendant on October 3, 1875. The present action was commenced on the 14th of May, 1879. The defendant had been in the actual adverse possession of the piano for more than three years, claiming it as her own before the plaintiffs brought their suit, or made their demand. The limitation of actions for the recovery of personal property has always been in- this State, and is now three years: Code, sec. 2773. And it has long been settled that the possession of personal property for the length of time required to bar the action of the owner for its recovery vests the title in the possessor: Taylor v. Miles, M. &. Y., 426. The question is, therefore, made in this case that the defendant is protected by the statute.
The action is not in trover, but in contract waiving the tort. It is well settled that a conversion of property will warrant an implication of indebtedness, and that the tort may be waived, and an action ex contractu maintianed for its value: Ott v. Whitworth, 8
In the last of the cases above cited, the opinion, delivered also by Nicholson, C. J., states that the action was commenced “to recover the value” of three horses converted by the defendants. The plea was the statue of limitations of three years, and the plaintiff replied that he commenced his action within three years next after he discovered the conversion. The court held that a demurrer to the replication was well taken. The parties and the court treated the limitation as prescribed by the Code, sec. 2773, which is three years “for the detention or conversion of personal property.” The limitation is six years in “actions on contracts not otherwise provided for” by the Code, sec. 2775. It is probable that the action was for the detention or conversion of the property, not in contract for its value as inadvertently stated in the opinion. And it is very clear from the report of the case that the distinction taken in the previous cases was not discussed, nor intended to be changed. The conclusion reached in those cases seems to be the logical result of allowing the injured party to elect to sue upon the implied contract. The title to the property becomes absolute in the possessor, as it would do in the case of an unconditional sale, while its value, like the pur-
There is no error in the judgment, and it must be affirmed.
Dissenting Opinion
DISSENTING OPINION.
delivered the following dissenting opinion.
On the 25th of September, 1875, C. S. Cooper bought of Guild, Church & Co., a piano at the price of $325,00; $27.12 being paid, the balance evidenced by Cooper’s eleven monthly notes, each for $27.08. By the written contract of sale, it is stipulated, the piano is to remain the property of Guild, .Church & Co., until all the payments are made. If the payments are not made, G. C. & Co., have the right to, and may take it back, and for that purpose may enter any building occupied or used in any way by Cooper, without liability for damages or trespass, and without legal process. And so if Cooper removes the piano from the house, or sell, or mortgage, or convey it, without their written consent.
The piano was bought in Boston and removed by Cooper to Memphis. On the 30th of' October, 1875, Mrs. McCombs bought the piano from Cooper and paid him $500,00. The contract with Guild, Church & Co., is signed by Cooper alone, and is the basis of this suit, which was commenced against Mrs. McCombs on the 14th of May, 1879. The agreed facts show that Mrs. McCombs believed the piano was the prop
The cases upon this subject have arisen in instances where persons have purchased personal property for their individual and private use. No case' has been produced extending the rule to embrace sales and purchases between merchant and merchant, in the course of their commercial business. The article in this instance was bought not for the private or family use of Cooper, but to be put upon the market for resale for the sake of the profit of such sale, and in the line of Cooper’s business. If the rule shall be construed to include such sales, the result will be to cripple trade. For instance, a merchant in Memphis goes to Boston, New York and Philadelphia, buys boots and shoes of one merchant, groceries of another, domestics of another, silks of another, hats of another, and so on to the completion of purchases of an entire stock, and with each of the dealers from whom
That this was a sale to Cooper as a merchant, I have not the slightest doubt, from the facts. It was kept on sale in a store where Cooper kept other pianos. Cooper being a dealer in such things, we may legitimately conclude he made the fact known at the .time of his purchase, that he might get the benefit of the usual reduction to the trade. The long delay to make any claim of Mrs. McCombs, materially strengthens the presumption. If it had been a sale for private use, the statement as to the keeping in a store for sale would have been qualified to that effect. The defendants in error admitting that it was so kept without more, thereby in substance agree that it was sold to Cooper to put on sale. As they give no date of their acquisition of such knowledge, we must presume they knew from the beginning. They voluntarily trusted Cooper and enabled him to impose upon Mrs. McCombs, their conduct has brought about the loss and they should bear it.
The cases allowing the validity of secret conditional sales have gone to the utmost permissible extent, to