42 So. 672 | Miss. | 1906
delivered the opinion of the court.'
This case is differentiated from the case of Columbus Buggy Co. v. Turley, 73 Miss., 529 (19 South. Rep., 232; 32 L. R. A., 260; 55 Am. St. Rep., 550). In the case, supra, the Columbus Buggy Company sold to one Smitha,' a trader, being actively engaged in the business of hiring and selling carriages and buggies, and being given in the contract itself authority to sell the articles sent to him by the Columbus Buggy Company. Smitha sold some of the buggies to Turley in satisfaction of a debt he owed him) and the Columbus Buggy Company brought an action in replevin for the vehicles, claiming that they had reserved title ■ in themselves; and the court, in passing on the question, says: “What effect shall be given these inconsistent terms, when the buyer is not only apparently clothed with all the indicia of ownership, but when, by the contract itself, the jus disponendi is unequivocally conferred on the buyer ? It would seem that only one answer can be returned to these questions. To permit the vendor in a conditional sale of personal property, bought in the course of trade for resale, to retain title and at the same time authorize the buyer to resell, would operate as a fraud upon innocent purchasers.” Columbus Buggy Co. v. Turley, 73 Miss., 537 (19 South. Rep., 233; 32 L. R. A., 260; 55 Am. St. Rep., 550). In the note given in this case, no right of sale is given, but by express terms the noté is made to fall due in case the vendee makes a sale of the property, trades, or otherwise disposes of same. Mr. Ainsworth states that he did not authorize Mr. Fletcher to make a sale, and the testimony of the other witnesses in the case fails to show that any sale was ever authorized by Mr. Ainsworth. It is not shown that Fletcher was engaged in the business of selling horses and mules, and that Mr. Ainsworth knew this and-sold to him for purposes of resale.
It was not error for the court to excluse the testimony of Mr. Nix as to a conversation he had with Mr. Ainsworth after he bought the animal in question. He had acted, and bought, before he saw Ainsworth; and at that time Ainsworth told him that there was a balance, but did not tell him how much, and Mr. Nix says he did not ask him. In all the cases which hold that a party selling goods is estopped to deny that title passed, on examination it will be seen that the party selling actually or constructively knew that they were to be. sold by the purchaser and acquiesced therein. In the case of Parry Mfg. Co. v. Lowenburg, 88 Miss., 532 (s.c., 41 South. Rep., 65), vehicles were sold under a contract reserving title, but giving the purchaser power to dispose of them, and the court held that such a contract could not be upheld as against a bona fide purchaser. In the case of Lewenberg v. Hayes (Me.), 39 Atl. Rep., 469 (64 Am. St. Rep., 215), this same distinction is made.
Affirmed.
