Parry Manufacturing Co. v. Lowenberg, 41 So. 65

Parry Manufacturing Co. v. Lowenberg

41 So. 65 | Miss. | 1906

Caliioon, J.,

delivered the opinion of the court.

The appellant company turned over to W. IT. Harvey, of St. Joseph, La., a lot of vehicles under a contract reserving title, but giving him the power to dispose of them as their agent, allowing him commissions as such and requiring reports from him, he being a general merchant. He became indebted to appellees and others, and shipped to appellees, I. Lowenberg & Co., which firm was one of these creditors, to Natchez, Miss., a lot of these vehicles to sell and to distribute the proceeds pro rata to his debts to *535that firm and his other creditors. The contract between appellant and ITarvey reserving title was never recorded, and none of the appellees had any notice of it, or that any one except Harvey had any claim on the vehicles. The case arises out of an action of replevin by the company.

We are unwilling to extend the rights of the owner who turns over property, with reservation of title, but giving the jus disponendi, beyond the present limits allowed by the authorities. This court has held in Columbus Buggy Co. v. Turley, 73 Miss., 537 (s.c., 19 South. Rep., 233; 32 L. R. A., 260; 55 Am. St. Rep., 550), under like circumstances, that a creditor, taking from the holder one of the articles in payment of a debt to him, got a good title. In the case before us, I. Lowenberg & Co. were not mere naked trustees, but interested, in that they were creditors and were to get their share of the proceeds in payment pro tanto of the debt due them. So we think the title passed from Harvey to them in the case now in hand.

Affirmed,.