Oppenheimer v. Telhiard

85 So. 134, 123 Miss. 111

Opinion

Stevens, J.,

delivered the opinion of the court.

This action is one of replevin instituted by appellee. M'rs. Telhiard, in a justice of the peace court of Hancock county, to recover from appellant possession of certain articles of furniture, which the officer executing the writ values in the total sum of seventy-five dollars. The defendant executed a forthcoming bond in the sum of one hundred and fifty dollars and retained possession. The defendant suffered judgment by default to be rendered in the justice of the peace court, but while the cause was pending in said court appellee, as plaintiff, had taken the deposition of one H. J. Nolan, a nonresident witness. This disposition was taken in the way provided by statute and is in due form. The defendant prosecuted an appeal to the circuit court, where the parties joined issue and had a trial of the cause anew on its merits. Upon the trial the plaintiff introduced Iu evidence the entire file of papers which the justice of the peace had certified as a record in the case, and specifically introduced and read to the jury the deposition of the witness Nolan. This action was taken over the ob jection of the defendant, who duly reserved an exception to the ruling of the court The real controversy arises out of the following facts: Joseph Oppenheimer, the husband of appellant, being in a retail furniture business in the city of New Orleams, La., on February 16, 191.7, delivered possession of a suit of furniture, the subject of this litigation, to one H. J. Nolan,- under a contract in writing which reads as follows:

“This agreement witnesseth that I, H. J. Nolan, of New Orleans, residing at No. 1738 Clio street, between Carondelet and Baronne, have this day rented from Jos. Oppenheimer the following’ articles described below.

“The whole value at one hundred and seventy-two dollars, for the term of---months, subject to the following conditions:

“I, the undersigned, hereby agree to pay without demand to Joseph Oppenheimer, or his authorized agent, as rent on said article or articles, the sum of twenty dollars in advance, and the sum of two dollars and fifty cents to be collected on Tuesday of each week until the full amount herein, is paid thereon, and that no sale of said article or articles is implied, nor shall a sale be deemed valid without a receipt from Joseph Oppenheimer, or his authorized collector, and I further agree that I will not sell, sublease, transfer, loan, pawn, give away or remove said article or articles from my house or place of residence except in case of fire, without the written consent of Jos. Oppenheimer, indosed thereon, and I further agree that any neglect on my part to pay the rent as stipulated in this contract will enable Jos. Oppenheimer, or his duly authorized collector, to take or cause to be taken said article or articles from my house or residence or wherever it may be and also that Jos. Oppenheimer, or his duly authorized collector or agent, shall not be guilty of “a trespass thereby; and I further agree to forfeit all that has been paid thereon, and waiving all exemption laws, and that there is no alterations or modifications of this contract either in writing or verbal now existing.

“[Signed] H. J. Nolan, Proprietor-.”

Under the terms of the contract Mr. Nolan obligated himself not to move the furniture without Mr. Oppenheimer’s consent. In 1918 Mr. Nolan moved to Bay St. Louis, Miss., and there rented a residence from one M!rs. Fayard, and removed the furniture in question to his Bay St. Louis residence. This removal was in pursuance of an express agreement and consent of Oppenheimer. Mr. Nolan kept up his payments until all but forty-four dollars had been paid. In November, 1918, Mr. Nolan decided to move to Houston, Tex., and just what action and agreements were had and made in reference to the furniture at this time is the subject of some controversy and some possible conflict in the testimony. According to the facts as found by the jury, Mirs. Telhiard, the appellee, purchased the property from Mr. and Mrs. Nólan and tendered Oppenheimer the balance of forty-four dollars due by Mr. Nolan under his contract. It appears that Mr. Nolan left Bay St. Louis before appellee agreed to purchase, but in leaving Mr. Nolan, the husband, authorized his wife, Mirs. Nolan, to sell the furniture. As Mr. Nolan went through Neiy Orleans he authorized Mr. Oppenheimer to take charge of the property in consideration of the further payments due, and, acting under this authority, Mir. Oppenheimer sent his agent to Bay St. Louis and took possession and removed the furniture from the F'ayard residence to a residence which Mr. Oppenheimer himself owned in Bay St. Louis. This was over the objection and protest of Mrs. Telhiard, the purchaser, who instituted this action of replevin, claiming title as a. purchaser from the Nolans, and again tendered and subsequently in court tendered the forty-four dollars. In his deposition Mr. Nolan testifies that he authorized Mr. Oppenheimer to take charge of the furniture only in event Mrs. Nolan failed to consummate a sale. There is testimony tending to show that Mrs. Nolan did in fact consummate a sale before Mr. Oppenheimer’s agent took possession. The cause was submitted to the jury under instructions for both parties, and the verdict returned in favor of appellee and fixing the value of the property at one hundred and fifty dollars. It appears that there is no actual proof of value except the officer’s return, and this return does not undertake to value each article of furniture separately, but states a total valuation of seventy-five dollars.. The jury did nob in their verdict value the articles separately. This action was no doubt had by the jury in pursuance of instruction No. 1 for the plaintiff, which reads:

“The court instructs the jury for the plaintiff that, if you find for the plaintiff, the form of your verdict shall be: ‘"We, the jury, find for the plaintiff and assess the value of the furniture at one hundred and fifty dollars.’ ”

There are several contentions why the judgment based upon this verdict should be reversed. The material assignments submit that the written contract is. one of lease, and not a conditional sale, and Nolan had no title to sell; secondly, whether the contract is to be viewed as one of lease or conditional sale, the title itself never passed until the full amount of the purchase price should be paid, and the purchaser, or the assignee of the purchaser, could not maintain replevin, but must be remitted to an action in damages for nonperformance; thirdly, that the sale between the Nolans and appellee was not consummated before Mr. Oppenheimer took charge of the property and delivered it to M!rs. Oppenheimer in Bay St. Louis; fourthly, that instruction No. 1, -there being no actual proof of value' other than the officer’s return, is erroneous; fifthly, that the alternative verdict of the jury fixing- the value at one hundred and fifty dollars and the judgment of the court based thereon are erroneous; sixthly, that the trial of the cause in circuit court was d& novo, and it was error for the plaintiff to introduce the deposition of the witness Nolan taken for use in the justice of the peace court; seventhly,- on the trial the court permitted, over the objection of appellant, testimony of the parties detailing the circumstances under which the furniture was purchased and the construction which the parties themselves placed upon the contract. One illustration of this testimony may be found in the following questions and answers of Mr.. Oppenheimer himself:

“Q. In other words, your agreement or your understanding with the purchaser when he buys this stuff (referring here to the furniture at issue) before he executes the contract is that you retain a vendor’s lien on the • stuff for the purchase money. A. Yes, sir.

£‘Q. And your lien is paid when he pays the amount owed on it. A. Yes, sir.

There are other assignments, but they are not pressed in counsel’s argument, and need not, we think, be seriously considered.

It affirmatively appears that Mr. Oppenheimer was a merchant in the furniture business in the city of New Orleans, and there delivered to H.' J. Nolan the articles of furniture in litigation at an agreed valuation of one hundred and seventy-two dollars. The property was delivered to Nolan at his New Orleans residence, and there remained for a material length of time. The contract then is beyond question a Louisiana contract, and should be construed according to the law of Louisiana. Under the authority of Barber Asphalt Paving Co. v. St. Louis Cypress Co., 121 La. 152, 16 So. 193, a conditional sale of movables is under the Louisiana law impossible. •

A condition sale in Mississippi is not only possible, but expressly recognized by our authorities. But any elaborate discussion either of the Louisiana or Mississippi authorities in reference to a so-called conditional sale is unnecessary. It is beyond question that the parties to the contract construed the instrument as one of sale and not of lease. The first declaration in the agreement says:

“I, the undersigned, hereby agree to pay without demand to Joseph Oppenheimer or his authorized agent” the consideration agreed upon.

The property was delivered upon the execution of the writing, and thereafter remained in the possession of the purchaser. The balance of forty-four dollars was tendered by appellee for and on. behalf of the purchaser. The tender was first declined upon the theory that the amount was too small. It matters little what nomenclature is employed in construing the contract, whether it is called an executory contract of sale or a contract of. sale with a “suspensive condition.” The contract itself provides that title shall pass on payment of the full amount of consideration agreed upon. An effort was made in good faith to pay the balance due and the payment was refused. On the merits of the case we see no error.

On the trial in the circuit court plaintiff, over the objection of the appellant, introduced the deposition of H. J. Nolan. This deposition had' been taken while the cause was pending and for use in the justice of the peace court. Objection is based upon the statutory provision that the trial upon appeal is de novo, and the contention made that the deposition was competent' testimony in if desired for use in the circuit court. We are of the opinion that the deposition was competent testimony in the circuit court. Under sections 1925, 1928, and 1931, Code of 1906 (sections 15851, 1588-, and 1591, Heming-' way’s Code) it is permissible to take the deposition of a nonresident witness in a civil cause before a justice of the peace the same as in the circuit court, and, when lawfully received by the justice, such deposition is filed and deposited among the papers in the cause. When taken in accordance with the statute, it may be introduced on the trial by either party. Under section 85, Code of 1906 (section 65, Hemingway’s Code), the justice of the peace “shall at once transmit to the clerk of that court a certified copy of the record of the proceedings, with all the original papers and process in the ease, and the original appeal bond.” We think a fair interpretation of this statute requires a justice to certify to the circuit court the deposition of a nonresident witness along with the other original papers in the cause. This was done in the present case, and there was no objection by way of motion to suppress or any showing of irregularity in the commission or the taking of the deposition. If the deposition of Mr. Nolan was competent and relevant in the justice of the peace court, it was relevant to the same issues upon appeal in the circuit court. This interpretation of the statute promotes justice and saves costs. It would be an idle and useless task to retake the deposition of a nonresident witness simply because the case had been appealed to the circuit court. The statute authorizes the introduction of valuable papers as exhibits to such deposition; and these exhibits and vouchers are required to b'e sealed up and directed to the justice along with the deposition and remain on deposit “among the papers in the causo.” If-it were required that the nonresident witness be re-examined for the circuit court trial of the same case, it would be necessary to withdraw exhibits on file and return, them to the witness for reintroduction and reidentification. We do not believe the legislature intended to require such an unnecessary and inconvenient proceeding. The objection to the deposition was properly overruled.

But instruction No. 1 granted the plaintiff necessitates a reversal and a remand for a proper assessment of valuation of the property. Both the instruction and the verdict based thereon fix the value of the furniture at one hundred and fifty dollars without any evidence, and without any effort on the part of the jury to assess each article of furniture separately: The cause will accordingly he affirmed as to the right of appellee to recover the property, but reversed for the proper valuation of the various articles of furniture upon proper writ of inquiry.

Affirmed as to liability.

Reversed and remanded as to damages.