Porter Hardware Co. v. Peacock

Smith, C. J., delivered the opinion of the court. This is an action of replevin in which the appellant, the plaintiff in the court below, seeks to recover from the appellee, the defendant in the court below, a gasoline engine which it had sold to the appellee on credit, reserving the title thereto until the purchase price should be fully paid. The sheriff in executing the writ of replevin took the engine into his possession, and no bond therefor was given by either party. It appears from the appellant’s declaration that the engine was sold to the appellee for five hundred and ñfty dollars of which the defendant paid, at or about the time of the purchase, one hundred fifty-, six dollars and sixty-five cents. The appellee filed a plea of the general issue, and gave notice in writing that he would offer evidence to prove that the engine was warranted by the appellant to be a fourteen horse power Waterloo engine, and would generate power sufficient to run the machinery of an ax-handle factory, then owned and operated , by the appellee, for use in connection with which the appellant knew that the engine was being purchased; that after due trial the engine would neither generate fourteen horse power nor sufficient power to run the appellee’s factory, for which reason the appellee notified the appellant that he desired to rescind the sale, to which the appellant refused to agree; that he had paid the appellant one hundred fifty-six dollars and sixty-five cents on the engine, and would demand a judgment over against the appellant therefor. At the time of the sale of the engine the appellee executed and delivered to the appellant a written instrument in words and figures as follows: “On or before the 28th day of February, 1921, for value received I promise to pay to the Porter Hardware Company at Oxford, Lafayette county, Mississippi, or order five hundred and fifty and no/100 dollars ($550) with interest at the rate of eight per centum per annum from date until paid. “Negotiable anil payable at Oxford, Mississippi. This note executed for the following described property: four [136] teen horse power Waterloo engine and account payable one hundred dollars every three months as follows: August 28,1920, November 28,1920, two hundred dollars February 29, 1921. “. . . Which I have this day received from the Porter Hardware Company with the express agreement and understanding that the title to the said property is now and shall remain in the said Porter Hardware Company until all said notes are paid in full, and who shall have the light in case of nonpayment of this or either of said series of notes, or at any time they deem themselves insecure, or if the property is sold or removed from the district where it is located, to enter and retake possession of said property, wherever it may be and remove the same,” etc. At the trial the appellee was permitted over the objection of the appellant to introduce evidence in accordance with the notice given by him with his plea. The instructions to the jury granted at the request of the appellee are to the effect that if the jury believe certain facts to “find for defendant in his counterclaim demand for repayment of said money.” One of the instructions is as follows: “The court instructs the jury for the defendant that if from the evidence in this case you find for the defendant on his counterclaim against plaintiff, the form of your verdict shall be: ‘We, the jury, find for the defendant on his counterclaim against plaintiff in the sum of $-’ (filling in the blank), and not to exceed the amount counterclaimed by defendant in the pleadings on file in this cause.” The verdict returned by the jury is: “We, the jury, find for the defendant one hundred fifty-six dollars and sixty-five cents.” The judgment rendered after setting forth the verdict recites: “And the court being of the opinion that the defendant did not deny the right of plaintiff under the contract of sale in this cause to retake into its possession the en [137] gine in controversy in this suit, but did deny the right of the said plaintiff to have and recover damages of him for the unlawful detention thereof, and the jury aforesaid so found for said defendant, it is ordered and adjudged by the court that the plaintiff have and recover the possession only of the said engine, and that it takes nothing by way of damages from said defendant; and it is further ordered and adjudged by the court that the defendant, J. W. Peacock, have and recover of plaintiff, Porter Hardware Company, the sum of one hundred fixty-six dollars and sixty-five cents, with legal interest thereon from date un-. til paid, together with all costs in this behalf expended, for all of which let execution issue.” The assignments of error are to the effect that the court below erred: First, in permitting the defendant to introduce evidence in support of his “counterclaim” of which notice was given with his plea; second, in permitting parol testimony that the plaintiff had warranted the engine to be capable of generating power sufficient to operate the defendant’s factory; and, third, in rendering a judgment against the plaintiff in favor of the defendant for the payment of the one hundred fifty-six dollars and sixty-five cents found to bé due him by the jury. “Not guilty” is the only plea permitted in an action of replevin (Code of 1906, section 4232; Hemingway’s Code, section 3061; Bennett v. Holloway, 55 Miss. 211), but whether it is necessary to give notice of affirmative matter to be given in evidence under it need not now be determined, for certainly no harm can result from so doing. The demand in the notice filed with the appellee’s plea for a judgment against the plaintiff for the money paid it for the engine,-however, amounts to nothing, and cannot be enforced, for the only judgments for the recovery of money that can be rendered in an action of replevin are for the value of the property involved or the interest therein of the party recovering for damages for the wrongful taking or detention of the property and for damages for the wrongful suing out of the writ (sections 4233, 4234, [138] 4235, Code oí 1906; Hemingway’s Code, sections 3062, 3063, 3064), and a judgment for the money paid tbe plaintiff on the engine is not within any of these classes. If the appellee had the right to rescind the sale and exercised it reasonably, he has the further right to retain the engine until the money paid- by him on it has been refunded to him (Williston on Sales, section 610), but has not the right in an action of replevin to a judgment and execution for the recovery of the money so paid. The instrument signed by the appellee at the time of the sale cannot be distinguished in so far as the parol evidence rule is concerned from the one signed by the appellee in Hightower v. Henry, 85 Miss. 476, 37 So. 745, and consequently must be held to be “not simply a promissory note, but a contract embracing all the terms of the contract between the parties.” Consequently parol evidence to the effect that the appellant Avarranted that the engine Avould generate sufficient poAver to operate appellee’s factory should not have been admitted. What the appellee promised to pay for according to the Avritten contract was a “fourteen horse poAver Waterloo engine,” and not for such an engine proAided it Avould generate poAver sufficient to operaté his factory. While there are authorities to the contrary (Williston on Sales, section 610; Pryor v. Ludden, etc., 134 Ga. 288, 67 S. E. 654, 28 L. R. A. [N. S.] 267), the case of Hightower v. Henry, supra, must control. The judgment Avhich the appellee sought and obtained Avas not that he might retain possession of the engine until the money paid on it by him should be refunded, but was that he recover of the plaintiff the money so paid. No such judgment can be herein rendered as hereinbefore explained. Reversed and remanded.