Johnson v. Tabor

Smith, J., delivered the opinion of the court. J. A. Hearon, appellee, was a creditor of appellant, and ~ffl. J. Tabor was Hearon’s agent, and attended for him to the matters herein involved. This suit, which was begun in the court of a justice of the peace, was instituted by appellee to recover of appellant possession of a horse and mare alleged to- have been purchased by him from appellant and paid for by a credit on the debt. The evidence relative to this alleged purchase can best be stated in the language of Tabor, appellee’s agent, and is as follows: “On that day he just come to me, and proposed to sell me a horse and mare on that date, and finally we -agreed upon it. He wanted me to give two hundred dollars for the mare and horse, on his account — deed in trust, it was — and I told him that I would give him one hundred and seventy-five dollars and after he -and I talked awhile over the matter he agreed to take it. He said that he could not pay his debt, and he would save feeding the stock until spring, and he could buy more, and he agreed to take it. I went down to the store, and I gave him credit for the mare and horse, one hundred and seventy-five dollars; also gave him a receipt. He was to deliver the stock to me. He said that he wanted to use the stock a few days — ■ wanted to use the team a few days, and he would deliver me the mare and the horse on the day after Christmas— the Monday after ■ Christmas. That was the understanding between Mr. Johnson and myself about the horse — mare and horse — that he would take one hundred and seventy-five dollars and deliver at the store.” All of this was denied by appelant, who claimed that nothing of the kind occurred. From a verdict and judgment in favor of appellee, this appeal is taken. Appellant, among other things, contends that the alleged sale is void under the statute of frauds (section 4779 of the Code), for the reason that the stock were not delivered and no part of the “purchase money” paid. [85] It is not necessary for the “purchase money” to be paid in coin or currency. It may be paid in anything-of value which the parties agree upon, and which the seller is willing to receive in payment; and, consequently, the credit given appellee upon his indebtedness, his actual discharge from any further obligation to pay the same to the extent of the agreed value of the property, constituted a payment of the purchase money. 20 Cyc. 252. The term “purchase money,” as used in this statute, means simply the compensation or consideration which the seller is to receive for the property. Devin v. Himer, 29 Iowa, 297. The stock, however, were never actually delivered; and it is argued that for that reason the sale was incomplete, and that title never vested in appellant. Where a sale of personal property is otherwise complete, . delivery as between the parties to the contract is not necessary, in order to invest the purchaser with the title thereto, unless delivery is required by the contract as a condition precedent to the vesting of title and the completion of the sale. Smith v. Sparkman, 55 Miss. 652, 30 Am. Rep. 537. Whether or not delivery is a condition precedent to a sale becoming absolute is a matter of intention, and, under the evidence hereinbefore set out, it was for the jury to say what the intention of the parties hereto was. The jury which tried the case upon its merits assessed the value of the horse and mare at two hundred and tewnty-five dollars, but failed to assess the separate value of each. At a later day of the term the court awarded a writ of inquiry, and the value of the property was by the second jury assessed at two hundred and fifty dollars, the' value of the horse being placed at one hundred and fifteen dollars, and that of the mare at one hundred and thirty-five dollars. In awarding this writ of inquiry the court committed no error. The fail [86] ure of the jury to assess the separate value of the animals rendered only that portion of the verdict void which assessed the value. Having discharged the first jury without its having properly assessed the value of the property, it became the duty of the court to award a writ of inquiry and to submit that question to another jury. Spratley v. Kitchens, 55 Miss. 578. In order that a justice of the peace may have jurisdiction of a suit in replevin, the value of the property involved must not exceed two hundred dollars. Biddle v. Paine, 74 Miss. 494, 21 South. 250. And, since the jury have assessed the value of the stock at two hundred and fifty dollars, it is argued that the justice of the peace, and, consequently, the circuit court on appeal, was without jurisdiction. The test of the jurisdiction is, not the value of the property as found by the jury, but the value as alleged in the affidavit, unless the property therein is knowingly over-valued or under-valued for jurisdictional purposes. Ball v. Sledge, 82 Miss. 749, 35 South. 447, 100 Am. St. Rep. 654; Brumfield v. Hoover, 90 Miss. 502, 43 South. 951. In the affidavit the value of the property is alleged to be, the horse seventy-five dollars and the mare one hundred dolars, making a total of one hundred and seventy-five dollars, and there is nothing in the evidence to indicate that this allegation was not made in good faith. The verdict rendered should not have been for more than one hundred and seventy-five dollars the reason that the affidavit in the court of a justice of the peace' serves the purpose which the affidavit and the declaration together do in the circuit court; for in the court of the justice of a peace the affidavit serves, not only as the basis for the issuance of the writ, but also as the written statement of the plaintiff’s cause of action. Hawes v. Robinson, 44 Ark. 308; Hanner v. Bailey, 30 Ark. 681. And, consequently, he cannot recover a value greater than that alleged. Tiedman v. O’Brien, 36 N. Y. Super. Ct. 539. [87] As we find no error in the other matters complained of, the judgment of the court below will be affirmed, provided appellee will enter a remittitur of forty dollars on the value of the horse and thirty-five dollars on the value of the mare, making a total of seventy-five dollars ; otherwise, it will be reversed- and remanded. Reversed and remanded.