Young v. Terry

Sykes, P. J., delivered the opinion of the court. This is a replevin suit, instituted by the appellant as plaintiff in the circuit court. The original declaration alleged that the plaintiff was the owner of certain showcases and other personal property, which she sold to G. T. Young for the sum of five hundred dollars, retaining the title to this property as evidenced by a note; that the purchase price has not been paid; that during the year 1920, G. T. Young entered into and became a member of the mercantile company of Forbas & Co., doing a mercantile business in the town of Itta Bena, and that Forbas & Co. used this property in conducting and as a part of its business; that-during the year 1921 this mercantile company was adjudicated a branlcrupt; that the plaintiff was not listed as one of its creditors; that the trustee in bankruptcy took [286] possession of this property and sold it to the defendant, Robert Terry. The declaration further alleges that the defendant wrongfully retains possession of the property. To this declaration there was interposed and sustained a demurrer, the principal ground of which was that the aver-ments in the declaration showed that the defendant, Terry, was the owner of, and rightfully in possession of, the property. This demurrer wag properly sustained. Section 4784, Code of 1906 (section 3128, Hemingway’s Code), provides that: “If a person shall transact business as a trader or otherwise, with the addition of the words . . . Co.,’ . . . and fail to disclose the name of his principal or partner by a sign in letters easy to be read, placed conspicuously at the house where such business is transacted, . . . all the property, stock, money, . . . used or acquired in such business shall, as to the creditors of any such person, be liable for his debts, and be in all respects treated in favor of his creditors as his property.” Under this section, as construed by this court, as to creditors, this property should be treated as the property of this mercantile concern. Payne Hdw. Co. v. Harvester Co., 110 Miss. 783, 70 So. 892; Bank v. Schaaf, 108 Miss. 121, 66 So. 402; Paine v. Hall Safe & Lock Co., 64 Miss. 175, 1 So. 56; Gillaspy v. Harvester Co., 109 Miss. 136, 67 So. 904. Leave was granted the plaintiff to amend the declaration. Instead of amending the original declaration, however, she filed an amended declaration. In this amended declaration she merely alleges that she is the owner of this property, and that the defendant took it and refuses to deliver it to her. She alleges that she is entitled to immediate possession of it, and that the defendant unjustly retains possession of it. To this amended declaration a second demurrer was interposed, in which it is alleged that the amended declaration contains no matters not alleged in the original declaration, but simply omits certain allegations contained in the-original declaration; that the mat [287] ters alleged in the original declaration are a part of the record in the cause and are binding upon the plaintiff in her amended declaration. This demurrer was sustained. It will be noted that this amended declaration contains the material averments of a declaration in replevin. It omits the statements in detail of why plaintiff is the owner of the property and why she is entitled to the immediate possession of it. This is a perfectly good declaration. It does not make the original declaration a part of it, neither is it an amendment to the original declaration, but an amended declaration in every respect complete within itself. In considering a demurrer to it the court cannot consider anything else, except the averments contained in this amended declaration and the demurrer thereto. It may be true, as contended by the appellee, that the plaintiff is merely making a paper case, which she cannot sustain. This, however, cannot be considered by the court, when considering the sufficiency of this amended declaration, when challenged by demurrer. It may be that the plaintiff will be able to prove facts different from those set out in the original declaration. As to that, however, we are not called upon to pass, but simply to say that all this court can consider upon this demurrer is whether or not the amended declaration alone states a cause of action. And this it does. The judgment of the lower court in sustaining the demurrer to the amended declaration is reversed, the demurer overruled, and the cause remanded, with leave to the defendant to plead to the declaration within sixty days after the mandate of this court has reached the circuit clerk. Reversed and remanded.