National Cash Register Co. v. Hude

80 So. 378 | Miss. | 1918

Ethridge, J.,

delivered the opinion of the court.

This is a suit by the National Cash Register Company in replevin for a machine or cash register sold to appellee for use in bis business in the city of Vicksburg. The contract provided for cash installments in monthly payments, and provided in default of any payment as provided in said note, it is agreed that all unpaid payments shall at once become due and payable, and that upon failure to make any payment provided herein at the time same is due and payable that the company shall take possession and remove said register without process, and in such case it was agreed that all payments theretofore made under the contract are considered as having been made for use of the register while in possession of the purchaser, and such payments shall be retained by the company as rental.

Prior to the institution of this suit the appellant had filed a suit against the appellee in the circuit court for the full amount of the purchase money because of a default in payment, and trial was had in the circuit court, in which the defendant defended upon the ground that the cash' register sold him would not do the work it was purchased to do, and that the défects were not discoverable except by use, and on discovering the defects the defendant had notified the company of the defects and elected to rescind the sale, and had tendered the cash register to the appellant. The jury in that case found for the defendant, and no appeal appears to have been taken from that judgment. Thereafter this suit was instituted in replevin, and the defendant declined to surrender the cash register until the register company had repaid to the defendant the sum of two hundred and thirty-five dollars which he had made as payments on the cash register; a part being in cash at the time of the purchase and some payments after receipt of the cash register. The defendant in this suit also defended on the ground that he was entitled to a common-law lien on the cash register until the money páid on the cash' register was repaid. The case was submitted to the circuit judge without a jury, and the judge entered a judgment reciting that, being fully advised in the premises, he finds that the plaintiff do have and recover the cash register No. 1446821 in suit upon tendering and paying to the defendant, John Hude, the sum of two hundred and thirty-five dollars, with interest to accrue from this date, and all costs accrued therein, and in default of which then it is ordered by the court that. said cash register be sold at public auction to the highest bidder for cash by the sheriff of this county in compliance with the statute on execution, and the proceeds thereof said sheriff shall distribute as follows: ' First, the cost of this proceeding; second, satisfy if it can the claim of John Hude, the defendant, amounting to two hundred and thirty-five dollars; third, and the balance, if any, to be paid to the plaintiff. From this judgment the National Cash Register Company appeals here.

We think that the judgment in the first suit established the fact that there was no sale made and that the defendant had rescinded and tendered back the cash register in question. We think that the clause in the contract set out above reciting that the payments made should be retained as rent for the use of the cash register does not apply in a ease where the cash register is deféctive and does not come up to representations. This clause would only become applicable in case the cash' register was as represented and was retained by the defendant under conditions where the plaintiff or seller had complied with his part of the contract. We think, however, that there was no common-law or other lien upon the cash register in favor of the buyer. To disaffirm or rescind the contract for misrepresentátion the buyer- would have to tender the cash register back to the seller, and he could enter suit for any amount paid the seller under such contract. We know of no statute giving a lien in a case of this kind, and certainly none exists under the common law. The remedies of the buyer have been announced by this court in several eases. In the case of Hall Commission Co, v. Crook, 87 Miss. 445, 40 So. 20 and 1006, this court announced the remedies of the buyer as follows: Where the seller of merchandise delivers goods of an inferior quality to that required by the contract, the buyer may: First, reject the goods and sue for damages; or, second, pay the contract price, take the goods, and recover the difference between their value and the value of the goods required by the contract. This rule is also announced in Westmoreland v. Walker, 25 Miss. 76, and Hambrick v. Wilkins, 65 Miss. 18, 3 So. 67, 7 Am. St. Rep. 631, and is recognized in Mobile Auto Co. v. Sturges, 107 Miss. 848, 66 So. 205.

The only method of acquiring a lien upon the property in cases of this kind that has been called to our attention, or that we have, found upon careful investigation, is one created by attachment. There was, however, no attachment in the present suit and no action by the defendant seeking or claiming any relief other than a lien under the common law. In the first suit the defendant in that suit, appellee here, did not file any offset or plea of recoupment, and his rights for money paid on the cash register were not adjudicated in that suit. We think it was error for the judge in his judgment to impose a condition of repayment on the right to recover, and it was error for him to direct the sale of the cash register in this proceeding. Accordingly the judgment in the court below is reversed.

Reversed, and judgment here for appellant.

Reversed.