Evans v. Junius Hart Piano House , 140 Miss. 467 ( 1925 )

^* Headnotes 1. Sales, 35 Cyc., p. 702 (Anno); 2. Sales, 35 Cyc., p. 702; 3. Sales, 35 Cyc., p. 702 (Anno); 4. Replevin, 34 Cyc., p. 1545. On the 10th day of January, 1924, Junius Hart Piano House, Limited, made an affidavit that one Junius Hart piano and stool of the value of four hundred dollars, property of the said piano house, was wrongfully detained by the defendant, Lucy Evans, and that said piano house was legally entitled to the immediate possession; and on the same day a writ of replevin was issued commanding the officer to take one Junius Hart piano and stool, and on the same day the sheriff made the following return:

"I have this day executed the within writ personally by taking in my possession the within described piano and further executed the within by releasing same on bond and delivering to Lucy Evans a true copy of this writ. This the 10th day of January, 1924.

"[Signed]

"W.W. BRANTON, "Sheriff."

On April 30, 1924, before the term of court to which the writ was returnable, the second Monday of May, 1924, the Junius Hart Piano Company filed its declaration presumably in a replevin suit, though it is very difficult to determine just what kind of action the declaration was intended to represent, but it charged, in substance, that Lucy Evans was indebted to it in the sum of four hundred dollars for one Junius Hart piano, No. 25005, and that she executed a contract to the said Junius Hart Piano House, Limited, for said amount, whereby she agreed to pay twenty-five dollars cash and the balance at the rate of twelve dollars and fifty cents per month on the 12th day of each month; that the contract provided that the title of said piano should not pass to said defendant, but should remain the property of plaintiff until fully paid for, and for ten per cent. attorney's fees and expenses of collecting; that the contract marked Exhibit A was attached to the declaration and prayed to be taken as a part of same, which contract was not attached to the declaration, we will say in passing, so far as this record discloses.

The declaration further alleges that the defendant had paid the sum of one hundred seventy-five dollars; that there is now due and owing, on account of the purchase of said piano, the sum of two hundred twenty-five dollars; that the defendant had been requested to pay same and had failed so to do to the damage of plaintiff in the sum of two hundred twenty-five dollars, with six per cent. interest per annum and ten per cent. attorney's fees; that said contract was given for the purchase of the piano aforesaid, and title of same was to remain in it until the full amount was paid and a replevin suit has been instituted for possession of same to enforce payment of said indebtedness, wherefore plaintiff brings its suit for the sum of two hundred twenty-five dollars, etc., and prays that said piano be condemned to be sold and the proceeds of said sale be applied to the payment of this judgment.

The defendant entered a plea of not guilty, and, upon hearing, the plaintiff offered the contract, which is signed only by Lucy Evans, and begins with this statement:

"This contract taken subject to the approval of the Junius Hart Piano House, Limited."

By the terms of said contract, Lucy Evans promises to pay four hundred dollars for one Junius Hart piano, No. 25005, with the stipulation that, if she made the payments as provided in the contract, the title was to fully vest in the subscriber. The plaintiff then offered the writ of replevin with the return of the officer, and the officer testified that the value of the piano which he released to the defendant on bond was two hundred twenty-five dollars, and thereupon the plaintiff rested his case, and the defendant moved to exclude the testimony, on the ground that the contract was unilateral and had never been approved; (2) on the ground plaintiff failed to show any breach of contract, or that there was a single cent due on the contract. The court overruled this motion and granted the plaintiff the following instruction:

"The court instructs the jury to find for the plaintiff the amount sued for, to-wit, two hundred twenty-five dollars, plus six per cent. interest thereon from February 22, 1922, together with ten per cent. attorney's fees," — and refused peremptory instruction asked for by the defendant.

The jury's verdict was as follows: "We, the jury, find the plaintiff the amount sued for."

Thereupon the court entered a judgment in favor of the Junius Hart Piano House, Limited, against the defendant, Lucy Evans, for the sum of two hundred twenty-five dollars, with interest and attorney' fees with cost of suit, and further ordered the Junius Hart piano, No. 25005, condemned to be sold, and the proceeds of the sale of the piano to be applied to the payment of the judgment.

There is nothing in this record to show that the piano seized, "one Junius Hart piano," was the same piano described in the contract and in the declaration as one Junius Hart piano, No. 25005. It was absolutely necessary to prove the identity of the property, and there is a variance between the declaration and writ, No. 25005 being omitted from the affidavit and writ and from the return of the officer, and no testimony aliunde was offered to show that the piano taken was the one described in the contract and declaration. There is no evidence showing that the plaintiff was entitled to the possession of the piano levied upon. The burden of proof is upon the plaintiff to show that he is entitled to the possession of the identical property. See Brunson v. Volunteer CarriageCo., 93 Miss., 793, 47 So. 377.

Next, we observe that there is no proof as to the balance due on the contract, or that Lucy Evans was in default, or the amount of the debt due, or whether any or all had been paid or not, and, in a replevin suit where plaintiff's interest is limited to the amount of the balance due it is incumbent on the plaintiff to show that the piano involved in the controversy has not been paid for. See Brunson v. Volunteer Carriage Co., cited supra; also Dennis v. Robinson, 104 Miss. 548, 61 So. 597, from which latter case we quote:

"It is necessary in an action of replevin to show that the property levied on and taken into possession by the officer executing the writ was that which the plaintiff was entitled to recover in the suit brought. The trial court did not err in rendering the judgment for defendant because of the absence of the necessary proof to so identify the property."

The form of the instruction was erroneous, in that the jury should have been instructed in a proper case to find for the plaintiff the property, describing it and the value thereof, and the verdict of the jury was not in proper form, because it did not comply with the requirements of the law, and the judgment cannot be justified under section 4233, Code of 1906 (section 3062, Hemingway's Code), because judgment was not for the value of the property or for the sale of the property to satisfy defendant's interest; in fact, the judgment does not find the defendant's interest in the piano.

In this case the property was taken by the officer and surrendered to defendant, and is not a case of the officer failing to take the property; consequently the instruction, verdict, and judgment were erroneous. See Meyer v. Warner,64 Miss. 610, 1 So. 837; Whittaker v. Goodwin, 97 Miss. 665, 53 So. 413. On the record the court should have given a peremptory instruction to the jury to find for the defendant. Appellant insists that she is entitled to a judgment here; but upon another trial some of these errors may be avoided, and a different result may be reached. There are other errors assigned which we do not deem necessary to notice at this time.

Reversed and remanded.