Opinion
No. 34666.
September 22, 1941. Suggestion of Error Overruled October 13, 1941.
1. SALES.
The plaintiff by making no objection to delay in first five monthly payments on automobile ratified that course of dealing, and had no right to declare entire indebtedness due and to demand payment therefor on account of delay in making sixth monthly payment, in absence of notification to defendant that such payment would be demanded on time.
2. REPLEVIN.
$500 punitive damages for bringing replevin action in which court held against plaintiff was excessive where there was less than $300 involved.
SMITH, C.J., dissenting; GRIFFITH and ALEXANDER, JJ., dissenting in part.
APPEAL from the circuit court of Harrison county, HON. L.C. CORBAN, Judge.
David Cottrell, Jr., of Gulfport, for appellant.
The facts in this case are, in the main, undisputed. Plaintiff is a national banking corporation being domiciled and located in the city of Mobile, Alabama, and, among other things, purchases Conditional Sale Contracts on automobiles.
The defendant, Mrs. H.W. Byrd, on January 12, 1940, bought a certain Plymouth coach from Taylor-Perkins Auto Company, of Gulfport, Mississippi, buying the same on Conditional Sale Contract on which she became indebted for a deferred balance of the purchase price in the sum of $384.94, payable in 18 equal, consecutive monthly installments of $21.38 each. Each installment was payable on the 12th day of each month thereafter and the contract provided, among other things, if any part of the said indebtedness should become due and remain unpaid in whole or in part, or if said chattel is removed or attempted to be removed from the state in which the purchaser then resided, that the full amount of the contract due on the said note should be forthwith due and payable and, further, that the holder of the said note, without any previous notice or demand of performance, should be entitled to immediate possession of the said automobile for the purpose of selling the same to satisfy the indebtedness thereby secured. When defendant executed the said contract, she gave her address as Gulfport, State of Mississippi.
For value received, the said Conditional Sale Contract and note attached thereto were shown by the said instruments to have been assigned by Taylor-Perkins Auto Company to the American National Bank Trust Company, of Mobile, Alabama, plaintiff, on the 12th day of January, 1940, who, thereafter, became the holder of the said Conditional Sale Contract and note and continued to hold the same from that time forward. The note was negotiable and payable at the office of the American National Bank Trust Company.
Defendant took possession of the said automobile and made five payments to the plaintiff on the said contract, according to defendant's testimony. The record shows that defendant was consistently slow, in the main, in making her payments on the said contract and that the last payment made by her on the said contract was delivered to the bank on June 27, 1940, which was the June 12, 1940, payment.
On July 12, 1940, the sixth payment under the said contract became due and payable and Mrs. Byrd did not pay the same when due and payable. Whereupon, the said bank sent the Conditional Sale Contract and note over to its attorney in Gulfport for collection, or re-possession of the car, declaring, under the terms of the contract, all the entire balance due, plus interest and attorney's fees. Thereafter, both the collection agent for the bank, Mr. Santa Cruz, and the Gulfport attorney for the said bank made repeated efforts to locate the defendant or the car, without any success, until on the 24th day of July, 1940, some twelve days after the contract and note had been declared in default and placed in the hands of the attorney for collection, or re-possession of the said car, as aforesaid, when the said Santa Cruz chanced upon the said Mrs. Byrd as she was driving on 25th Avenue in Gulfport. He overtook her and stated to her that her account was in default and in the hands of an attorney for collection and suggested she see the attorney for the bank, which she did immediately. The attorney explained to her that the said bank had declared the entire outstanding balance due, and made demand for this amount, whereupon Mrs. Byrd informed the attorney that she had just left a payment with Taylor-Perkins Garage for the bank, which was the payment due July 12, 1940, and was a bare payment without any interest or attorney's fees added, being $21.38. She was told that this amount of money was insufficient to reinstate the contract and the money was sent for and immediately refunded to her, she accepting the same, and returned the receipt which she had taken from Taylor-Perkins which was merely a Taylor-Perkins Auto Company receipt and purported in no way to be a receipt for the bank on its face. Mrs. Byrd testified that she left the said payment at Taylor-Perkins Garage about 11 o'clock. Her testimony was as follows: "Q. Do you remember about what time you made the payment that morning? A. Somewhere around 11 o'clock. Q. And a suit was filed around 12 o'clock? A. Must have been around a quarter of 12 when they took the car."
In other words, about 45 minutes intervened from the time of her leaving the money with Taylor-Perkins and the time their authority to receive the same was repudiated and her money returned to her as being insufficient to reinstate the contract. She accepted the money and returned the Taylor-Perkins receipt.
To this point there seems to be no conflict in the evidence. As to Mrs. Byrd's being out of the state with the car and about to take it out of the state again, the attorney's testimony was that Mrs. Byrd stated the reason she could not be found was that she was in Louisiana and, further, she was on her way back there then and wanted to get her car straightened up so she could drive it back. Mrs. Byrd admitted she had been in Louisiana all the time since the date of her default, returning on the 24th of July, but denied she had taken the car with her or was going to drive it back to Louisiana. She admitted she was about to return to Houma, Louisiana, where she was working.
In this situation the suit was filed in replevin by the bank against Mrs. Byrd and the automobile seized.
In this situation, the cause went on for trial, plaintiff claiming, through its declaration, its right to the seizure because of the said default in the making of the payment due on July 12, 1940, when due, and on the basis that the entire outstanding balance had become due and payable and plaintiff entitled to the immediate possession of the said automobile because of such default and for such purposes as set forth in the Conditional Sale Contract. Plaintiff further claimed right of possession to the said automobile for the reason of its being removed from the state and about to be removed from the state, contrary to the terms of the said contract. Defendant denied liability and claimed that the payment left at Taylor-Perkins Garage reinstated the contract and cured all defaults and asked for five hundred dollars damages. Jury found for the defendant and awarded the damages asked.
Appellant maintains that a Conditional Sale Contract, providing for payment of a deferred balance on the purchase price of an automobile in monthly installments, on which purchaser has made default in payment when due and the balance of payments declared due by the holder in accordance with the terms of the contract and same placed in the hands of an attorney for collection, cannot be reinstated by a payment of less than the accelerated balance so as to deprive holder of the contract of his right to sue thereon, unless said payment complies with the provisions of Section 2170, Mississippi Code 1930.
Payment to an automobile sales company who sold automobile under Conditional Sale Contract and who had sold said contract with the knowledge of the purchaser of the automobile to another, does not amount to payment to holder of the contract. New Home Sewing Machine Co. v. Moody (Miss.), 198 So. 549; Bank of Shaw v. Ransome, 112 Miss. 440, 73 So. 280; W.T. Raleigh Co. v. Fortenberry, 148 Miss. 604, 114 So. 393; Fairbanks-Morse Co. v. Dale Lumber Co., 172 Miss. 271, 159 So. 859.
Where payment of one installment on Conditional Sale Contract with note attached and in default is delivered to a third party, the original seller of the automobile who is not the holder of the said contract and note, and said payment is not acceptable by the holder of the said note as sufficient to reinstate contract on its former unaccelerated basis and is returned to the purchaser with that understanding who accepts the same back, purchaser cannot rely on such transaction to reinstate defaulted contract. Curtis v. Innerarity, 12 U.S. (L.Ed.) 380; 17 A.S.R. 648; Fairbanks-Morse Co. v. Dale, 172 Miss. 271, 159 So. 859.
Payment or tender under Conditional Sale Contract in default of less than the amount due thereunder is not available as a defense to suit based on said default. 55 C.J. 1293; 62 C.J. 663.
The authority of an agent to bind his principal rests upon the powers conferred upon him by his principal. Dahnke-Walker Milling Company v. T.J. Phillips Sons, 117 Miss. 204, 78 So. 6.
Where parties unsuccessful in replevin suit have acted in good faith in claiming given property, the measure of damages is the reasonable value of the use of the property for the period the successful party has been deprived of its use. Cook v. Waldrop, 133 So. 894, 160 Miss. 862.
Where verdict of the jury is manifestly against the overwhelming weight of the evidence, said verdict should be set aside. Fore v. I.C. Railroad, 160 So. 903, 172 Miss. 451; M. O. Railway v. Johnson, 141 So. 581, 165 Miss. 397; Y. M.V. Railway v. Pittman, 153 So. 382, 169 Miss. 667; Beard v. Williams, 161 So. 750, 172 Miss. 880; Faulkner v. Middleton (Miss.), 190 So. 910; North v. Delta Chevrolet Co. (Miss.), 194 So. 478.
T.J. White and G.H. Hewes, both of Gulfport, for appellee.
On or about July 25, 1940, the appellant herein, acting through its agent Santa Cruz, and its attorney of record, and without authority of law, and at a time when there was no default in the contract executed by the appellee, enticed the appellee to come to the office of the appellant's counsel herein, and while she sat in the said office, at a time when she had paid all that was due the said Bank, the Bank's attorney detained her until the proper affidavit for a writ of replevin could be prepared and filed.
This Honorable Court will observe that at the time of the filing of this suit not one cent was due by the appellee to the appellant, and that all of the facts which the counsel for the appellant calls facts, were in fact found by the jury not to be facts. The payment herein in question had been made before any demand was made upon Mrs. Byrd for the return of the car, or any other demand had been made upon her.
It will be observed also that appellant, in its brief, has much to say about a bare payment having been tendered at his office, when, in truth and in fact, what transpired at the office, as shown by the record, is that the duly authorized agent of the Bank, Santa Cruz, went to the office of Taylor Perkins, as was his custom, received this money for the Bank before any suit had been filed, then in order to give them the right, as they considered it, to take this car regardless, and in order to obtain the receipt which was given to the appellee, they did refund her one payment. There is no testimony in the record that Mrs. Byrd reached any agreement with the Bank or the Bank's attorney at that time; in fact, the record shows that Mrs. Byrd left their office dissatisfied, and was told by the attorney for the Bank words in the following substance: "If you don't like what we have done, or if you are dissatisfied with the way we are handling this matter, I suggest you go and see an attorney."
We do not differ with the appellant as to its citations of the law, but all of the appellant's assignment of errors, argument of the law, and the citations given, are all based on a false premise, to-wit: The account was not in default and no money was due by appellee, Mrs. Byrd, to the appellant bank under the conditional sales contract until August 12, 1940, at the time of filing this suit. The appellant takes the position that since its attorney had a confidential letter from the Bank, instructing him "to take this car," that the Bank then had a right, without making any demand on Mrs. Byrd, and without giving her an opportunity to pay her note, to take this automobile, even though, as is clearly shown, before the attorney ever contacted Mrs. Byrd she had paid the note in full. Hence we say that all of the contentions of the appellant herein were decided adversely to the appellant when they were submitted to the jury.
We shall now take up the points discussed by the appellant in an effort to show that although the appellant may have correctly stated the law, that none of the cases cited apply to this case for the reason that no part of the indebtedness of the Conditional Sales Contract remained unpaid at the time.
The issues submitted in this cause were as follows:
First: The appellee contended that the Taylor-Perkins Automobile Company was the agent of the appellant bank for the collection of the installments due.
Second: The appellee contended that she had paid all that was due on July 24, 1940, and did not owe another installment until the following August. She contended that the Taylor-Perkins Company was and had been acting as agent for the bank and had collected previous payments from her, and that their admitted agent, Santa Cruz, would call at the office of Taylor-Perkins and obtain the money; that his calls were regular and, in fact, daily.
Having paid all that was due on the 24th day of July, before any demand had been made upon her, or any letter written to her, or any proceeding instituted against her, and having paid that amount as had been her custom to pay it, and as had been their custom to accept it, and after the appellant's agent, Santa Cruz, and their attorney knew of these facts and had the money in their possession that she had paid, they then instituted this suit without any right so to do.
The appellee also submitted to the jury the question of damages sustained by her as a result of the wrongful and willful disregarding of her rights in demanding her automobile at a time when she was not in default, and when there was no reason under the facts or law to justify such a procedure.
The above questions as presented were all decided in favor of the appellee, Mrs. Byrd.
On the question of tender, the counsel for the appellant attempted to have the Court require her to tender the payments that had accrued after the filing of the suit, when her testimony was that while she was in the custody of the attorney for the plaintiff and their agent, Santa Cruz, she was told that they would not accept anything except the total amount due plus the cost and attorney's fees. This statement, which appears in the record undisputed, is not even an attempt on the part of the appellant to comply with the statutes that the appellant so strongly urges as the law in the case, which said statute is Section 2170 of the Mississippi Code of 1930. Under that section, even if Mrs. Byrd had not already paid to the duly authorized agent, Taylor-Perkins, (as found by the jury), the amount of the installment, the most that the appellant could have claimed would have been $21.38 plus 15% of that amount, which is $3.30, or a total of $24.68; whereas, the undisputed evidence shows that the appellant demanded of her at that time a balance of $277.94, plus $41.68, or a total of $319.62.
The appellant is in this position now: It would like to anchor itself to Section 2170 of the Mississippi Code of 1930, but at no time did they offer to comply with that Section while having this suit prepared and detaining the appellee until it could be prepared.
It is our contention that there is no question in this lawsuit about reinstating a contract, for the reason that she was not in default at the time suit was filed as no part of the indebtedness remained unpaid.
The record clearly indicates that no demand was made at any time until after the payment of the note and while the appellant had in its possession the money which paid the July note, and that nothing was due until August 12, thereafter. In support of this contention, we submit the case of Stakler et al. v. Slade, 114 So. 396; DeVane Chevrolet Company v. Montgomery Ward Co., 147 So. 335.
In the case of Neal v. Newberger Company, 123 So. 861, the Court held that the Chancellor would have been justified in awarding punitive damages if in his judgment he had seen fit to do so, notwithstanding appellee's agent honestly believed that the property belonged to appellee. The Court goes further and says that punitive damages may be recovered not only for a willful and intentional wrong, but for such gross and reckless negligence as is equivalent to such a wrong. A spirit of wantonness and recklessness is at war with good faith. An act done in such a spirit oftentimes is just as harmful as if prompted by malice.
In the case of Cook v. Waldrop, 133 So. 894, it was held that attorney's fees are recoverable as an element of punitive damages. In this last case referred to, Waldrop was the sheriff and merely had possession of Cook's livestock for the purpose of dipping the same. In that case the sheriff was acting in accordance with his apparent rights under the law, and acting in good faith, and the Court held that in so doing the owner could not recover punitive damages. This, of course, is based on the very sound reason that the sheriff was merely an instrumentality of the State, so designated by the laws of 1926. We have no such case as that here, but, on the other hand, we do have a case where the appellant, in total disregard of the appellee's rights, and without the authority of law, proceeded to repudiate the act of their agent in accepting the money, and then to humiliate the appellee by taking her automobile way from her on the streets of Gulfport, requiring her to go to the expense of employing counsel and of making bond and of defending this suit.
It will be noted here that there is not one word of dispute in the testimony as to the damages sustained by the appellee. There was no effort made on the part of the appellant to show that she did not suffer the $500.00 demanded, and no testimony of any kind or character to dispute her claim for that amount.
David Cottrell, Jr., of Gulfport, for appellant, in reply.
Appellant contends that ample demand was made upon the defendant although none was, in fact, necessary under the pleadings and the evidence. Said defendant below stood her grounds and contested the right of property in the plaintiff below.
The rule in this state, applicable to the facts, is well established. Under the authority of Dearing v. Ford, 13 Smedes Marshall 268; Newell v. Newell, 34 Miss. 385; and George v. Hewlett, 70 Miss. 1, 12 So. 855; 35 Am. St. Rep. 626, it is said — "that where one is lawfully in possession of personal property having a charge upon it or the like, a demand by the owner is necessary to perfect his right to maintain replevin; but when sued if the defendant stands his ground and contests the right of property in the plaintiff he cannot afterwards change his position and rely upon want of demand or other merely preliminary step as defense."
See DeVane Chevrolet Company v. Montgomery Ward Company, 147 So. 335; 80 A.S.R. 755.
Argued orally by David Cottrell, Jr., for appellant, and by T.J. White, for appellee.
The evidence was sufficient to establish these facts: That appellant made no objection to the manner of making the first five monthly payments nor the delay in making them. It thereby ratified that course of dealing. For that reason, the appellant had no right to declare the entire indebtedness due and demand payment therefor on account of the delay in making the sixth monthly payment without having previously notified appellee it would demand that payment on time. That was not done according to the evidence for appellee. In fact, there was little, if any, substantial conflict in the evidence as to those facts. With that sort of a case appellant showed a reckless disregard of appellee's rights in undertaking to declare the whole indebtedness due and payable, and bringing replevin.
However, the verdict of the jury in appellee's favor for $500 damages ought not to stand under the evidence. It was all punitive. That was too much punishment in a case where there was less than $300 involved.
If appellee will enter a remittitur for $350 the judgment will be affirmed. Otherwise, it will be reversed and remanded to be tried alone on the question of damages.
Affirmed with remittitur.
DISSENTING OPINION.
While I concur in the conclusion that the peremptory charge requested by the appellant bank was properly refused, I dissent from the allowance of any punitive damages. The facts do not justify any such an award. Appellant is condemned as having acted wilfully and oppressively when the record critically examined does not support that conclusion. And a striking feature which cannot escape attention is that appellant is condemned for acting on the advice of its attorney when one member of this Court now holds and maintains his opinion in a dissent, that the advice of the attorney was correct. Can it be that we are embarking upon such a sea of uncertainty that a client to be protected must see to it that he gets the advice of a lawyer better able to judge of legal rights than any one of the judges of this Court? As a practical matter this may be done, but there is no such thing as that any lawyer may be found who possesses such powers of prevision that in every case, whatever the case may be, he can foretell with perfect accuracy what the decision of the majority of this Court, or any other court, will be. If this were possible, there would no longer be any occasion for cases in court — they would be disposed of in the offices of lawyers and would never reach a court. A plaintiff in replevin ought not be required to respond in punitive damages when he is without malice and in instituting his suit he acts upon the mature advice of an experienced and reputable lawyer, as in this case, and when there is no substantial evidence that the advice was not given upon a full disclosure of the material facts and in sincere belief in the validity thereof, and more especially as in this case when one of the judges of the state's highest court says that the advice upon the facts was correct. Here is simply an opening wedge to allow it to be said that if on a finished record the majority of the Court decides that the replevin suit ought not to have been brought, then the plaintiff therein is liable as for a wilful tort, a proposition which in effect this Court has rejected over and over. See Ellzey v. Frederic (Miss.), 3 So.2d 849, this day decided.
Alexander, J., joins in the above.
As I understand the evidence, the appellee was in default in her payments on the automobile when the action was begun; consequently, in my opinion, the appellant's request for a directed verdict should have been granted.
If I am mistaken in this and the appellee is entitled to recover the automobile, she should not be awarded punitive damages, for the appellant did not bring the action in wilful disregard of the appellee's rights. All that happened was that its attorney was mistaken in thinking that the appellee was in default in her payments, and, therefore, the action would lie.