Munn v. S. F. Bowser & Co.

75 So. 372 | Miss. | 1917

Sykes, J.,

delivered the opinion of the court.

This is a replevin suit and was instituted in a justice of the peace court for the recovery of a gasoline tank. Judgment was rendered in that court in favor of the plaintiff, and an appeal was taken to the circuit court. A peremptory instruction was there given in favor of the plaintiff, and judgment was entered accordingly, from which judgment this appeal is prosecuted.

The replevin suit was based upon a contract entered into between the appellee and the Thrash Drug Company, relating to the purchase of the gasoline tank. In this contract the title to the tank is reserved in the appellee Bowser until the price, or any note, or judgment for all or part of the same, has been paid in full. A promissory note for the balance of the purchase price was at the same time given by the Thrash Drug Company to the appellee. To the declaration the defendant in the court below, the appellant here, pleaded the general issue, and gave notice that he would prove that the Thrash Drug Company did not owe the appellee any balance for the purchase price of said tank, and that this fact had been adjudicated in a prior suit between the Thrash Drug Company and the appellee, based upon this same contract. At the trial in the circuit court the plaintiff introduced in evidence the original order contract and note signed by the Thrash Drug Company. It proved what was a reasonable attorney’s fee for the plaintiff, and then rested. A motion was then made bv the defendant to exclude the testimony, which was duly overruled. The defendant then introduced testimony showing that he had purchased the tank for a valuable consideration, and then introduced the entire record of. the former suit in the justice of the peace court. This record shows that the appellee here instituted suit in a justice of the peace court of proper jurisdiction for the balance of purchase money alleged to be due under the original contract upon which this replevin suit was based. The defendant filed a plea of recoupment or set-off and denied the correctness of the account of the plaintiff. In this trial the same testimony relating to the contract was introduced as was introduced in this replevin suit. The issue, in other words, in the first case was whether or not the Thrash Drug Company was indebted to Bowser & Company under this written contract. The justice of the peace decided in favor of the defendant Thrash Drug Company, and rendered judgment accordingly. Prom this judgment no appeal was taken. The appellee attempted to meet this proposition bv introducing the justice of the peace who tried the first suit, and who testified, over the objection of the defendant, that judgment was rendered in favor of the defendant because he believed the contract had been materially altered by the plaintiff without the knowledge and consent of the defendant, and, for that reason, was not a valid contract and the suit could not be maintained thereon.

This testimony was incompetent. The justice of the peace should not have been allowed to give the reasons why he rendered judgment as he did. The issues in this case were presented by the pleadings; there was nothing to be supplied by oral testimony. As is said in the case,, of Fayerweather v. Ritch, 195 U. S. 276, 25 Sup. Ct. 58, 49 L. Ed. 193;

“Nevertheless no testimony should be received except of open and tangible facts — matters which are susceptible of evidence on both sides. A judgment is a solemn record. Parties have a right to rely upon it. It should not lightly be disturbed, and ought never to be overthrown or limited by .the oral testimony of a judge or juror of what he had in mind at the time of the decision.”

The foundation of both suits is the written contract. It was adjudicated in the first case that the plaintiff could not recover upon this contract. The judgment in the first case also adjudicated the fact that the Thrash Drug Company did not owe the appellee here for any balance of purchase money for this tank as. evidenced by this contract.

A replevin suit cannot be maintained for personal property when there is no balance due for the purchase price of same where title has been reserved in the seller until the property is paid for, as in this case. McPherson v. Acme Lumber Co., 70 Miss. 649, 12 So. 857.

The court erred in not granting the peremptory instruction asked by the appellant.

Reversed and dismissed.