Opinion
No. 40257.
October 22, 1956.
1. Attachment — purchase money lien — airplane sold in Louisiana — removed to Mississippi.
By removing airplane sold from Louisiana to Mississippi, buyer deprived seller of right to seize airplane in Louisiana, which has a purchase money lien statute, and seller had right to attach airplane in Mississippi. Sec. 337, Code 1942.
2. Pleading — necessity of attaching copy of instrument or writing of which profert is made — rule held not applicable.
In action to enforce purchase money lien for balance alleged to be due on purchase price of a used airplane, it was not error to allow introduction of checks given by defendant in payment for airplane, notwithstanding fact that copies thereof had not been attached to declaration. Sec. 1470, Code 1942.
3. Instructions — considered together constituted sufficient statement of law on issue submitted to jury.
Instructions when read and considered together were not contradictory or misleading and constituted a sufficient statement of the law on the issue submitted to the jury.
4. Sales — action to enforce purchase money lien for balance allegedly due on purchase price of airplane — verdict for seller proper — as against claim for repairs due to seller's failure to maintain guaranty.
In such action to enforce purchase money lien for balance of $1,625, alleged to be due on purchase price of used airplane, wherein defendants claimed that they were not indebted in amount claimed because they had been forced to make expenditures by reason of seller's failure to maintain guaranty, verdict for seller in sum of $1,325 was not contrary to great weight of evidence.
Headnotes as approved by Lee, J.
APPEAL from the Circuit Court of Neshoba County; W.E. McINTYRE, Judge.
Ethridge, Minniece Bourdeaux, Meridian, for appellants.
I. The contract of sale was consummated in the State of Louisiana and, therefore, Section 337 of the Mississippi Code of 1942, giving appellee a vendor's lien, is not applicable in this case. In re Shumaker, 277 Fed. 521; In re Tucker, 1 F. Supp. 18; Sec. 337, Code 1942.
II. The Lower Court committed prejudicial error in allowing the introduction of checks given by appellants and evidence with reference thereto over the objections of appellants since copies of such checks had not been attached to the pleadings as required by law. Lawson v. Dean, 144 Miss. 309, 109 So. 801; Sec. 1470, Code 1942.
III. The Lower Court committed prejudicial error in granting the second instruction given to appellee, which is as follows. "The Court instructs the jury for the plaintiff that the record shows that only $406.07 had been spent on said airplane for repairs or replacements to date, and that there remains due and unpaid on the purchase price of said airplane, $1,625." Hooks v. Mills, 101 Miss. 91, 57 So. 545; Potera v. Brookhaven, 95 Miss. 774, 49 So. 617; Stringer v. State (Miss.), 38 So. 97; Gordon v. State, 95 Miss. 543, 49 So. 609; Pettus v. State, 200 Miss. 397, 27 So.2d 536; Ceary v. State, 204 Miss. 299, 37 So.2d 316; Wright v. State, 209 Miss. 795, 48 So.2d 509; Sec. 1530, Code 1942.
IV. The Lower Court committed prejudicial error in granting the fifth instruction given to appellee, which is as follows. "The Court instructs the jury for the plaintiff that if you believe from a preponderance of the evidence presented in this case that plaintiff delivered said airplane to the defendants under the terms and conditions of their agreement, then you will find for the plaintiff in the amount sued for."
V. The Lower Court erred in overruling appellants' motion for a new trial since the verdict of the jury was against the overwhelming weight of the competent evidence.
Kenneth I. Franks, Philadelphia, for appellee.
I. The contract of sale was consummated in the State of Louisiana, giving appellee a vendor's lien under Louisiana Statute, or under Section 337 of the Mississippi Code of 1942. Superior Laundry Cleaners, Inc. v. American Laundry Machinery Co., 170 Miss. 450, 155 So. 186; E.J. Platte Fisheries v. Wadford, 170 Miss. 617, 155 So. 161; Sec. 2239, et seq., Code 1930; Sec. 337, Code 1942.
II. The Lower Court committed no prejudicial error in allowing the introduction of checks given by appellants and evidence with reference thereto over the objections of appellants, said checks not being the basis of the indebtedness sued on. Parker v. McCaskey Register Co., 177 Miss. 347, 171 So. 337; Cole v. Cole, 194 Miss. 292, 12 So.2d 425; Enochs-Flowers, Ltd. v. Bank of Forest, 172 Miss. 36, 157 So. 711; Huff v. Murray, 1771 Miss. 656, 158 So. 475.
III. The Lower Court committed no prejudicial error in granting the second instruction given to appellee. Moody v. Galigher Son, 1 Miss. Dec. 435.
IV. The Lower Court committed no prejudicial error in granting the fifth instruction given to appellee.
V. The verdict of the jury was amply supported by the overwhelming weight of the competent evidence.
Joe D. Hair, doing business as Hair Flying Service of Baton Rouge, Louisiana, sued Mrs. Bessie Blount and husband, H.E. Blount, to enforce a purchase money lien for the balance of $1,625, alleged to be due on the purchase price of a used airplane. The pleadings alleged that the plaintiff, on April 26, 1955, sold the airplane to the defendants for $8,250; that 50% thereof was financed, and the defendants gave their check for $4,125, supposedly cash, but that the same was not paid on presentation; and that they finally paid $2,500 thereon and gave another check for $1,625, but that the balance was never paid.
The defendants admitted that they entered into the contract, as alleged, but denied that they were indebted in the amount claimed because they said that they relied on certain promises by the plaintiff, which he did not keep, and that they were required to spend large sums of money for the repair of the airplane.
An agent of the seller flew the airplane to a field on the property of the defendants at Philadelphia, Mississippi, where the deal was tentatively agreed upon. Several days later, on April 26, 1955, when it was ready for delivery, the Blounts were in Tallulah, Louisiana. Consequently delivery was made at that point, and the Blounts gave their check in the sum of $4,125. The check, on presentation, was dishonored. After several days, they substituted two checks in the sum of $2,500 and $1,625, in lieu of the original, and the larger check was paid, but the smaller one was never paid.
The evidence for the plaintiff was to the effect that the only representation which was made in connection with the sale was that the plaintiff would make both the 100-hour and the annual inspections on the airplane to assure its air-worthiness and relicensing before delivery, and that this was done. It was denied that performance was guaranteed for 90 days or 100 hours, whichever came first.
The evidence for the defendants was to the effect that the plaintiff guaranteed performance of the airplane for 90 days or 100 hours, whichever came first; and that it had certain defects, especially a part of the landing gear and the radio. These repairs were made before the $2,500 check was paid. At that time, according to the plaintiff's evidence, Tom Blount, the son of the defendants and the pilot, expressed satisfaction; but Tom testified that they were not satisfactory and that the engine also started to "throw oil". Tom testified that approximately $395 was expended for repairs and that the airplane needed a major overhaul, and at least a "top" overhaul, either of which would run into considerable money.
The jury's verdict was for the plaintiff in the sum of $1,325; and from the judgment entered the defendants appeal.
(Hn 1) The appellants contend that the contract was consummated in Louisiana, and that Section 337, Code of 1942, giving appellee a lien, is not applicable. In E.J. Platte Fisheries v. Wadford, 170 Miss. 617, 155 So. 161, it was held that the buyer of fishing equipment, a resident of this state, who leased such equipment to Louisiana fishermen, could not enjoin the unpaid seller in this state from prosecuting an attachment suit in Louisiana. By the same token, since Louisiana has a purchase money lien statute, Superior Laundry Cleaners, Inc. v. American Laundry Machinery Co., 170 Miss. 450, 155 So. 186, the appellants, by removing the airplane from Louisiana to this state, deprived the appellee of the right to seize it in that state. When appellee attached the airplane here, he did no more, in effect, than he would have had the right to do in Louisiana, under the laws of that state, had the property been found there before removal. Platte Fisheries v. Wadford, supra.
(Hn 2) The appellants also say that, under Section 1470, Code of 1942, it was error to allow the introduction of the checks which were given by the appellants inasmuch as copies were not attached to the declaration. The suit was not based on the checks, but on appellee's demand for the enforcement of his purchase money lien. The checks were merely explanatory of the indebtedness. They did not form the indebtedness. In Enochs-Flowers, Ltd. v. Bank of Forest, 172 Miss. 36, 157 So. 711, the action was founded neither on the conveyance from I.C. Enochs, Sr., nor on the collateral security, but on the notes themselves. Consequently the Court held that it was not necessary to make profert of the conveyance or the collateral security in order to offer the same in evidence. Appellants cite Lawson v. Dean, 144 Miss. 309, 109 So. 801. But in that case, the suit was based on an administrator's bond, and of course it was necessary that a copy of the bond should be annexed to or filed with the declaration.
(Hn 3) Appellants also contend that two of the instructions for the plaintiff were erroneous and constituted reversible error. These instructions, while not complete within themselves, were not contradictory of the defendants' instruction on the merits. The real issue for submission to the jury was whether the plaintiff guaranteed performance of the airplane for 90 days or 100 hours, whichever came first, and if so, whether the plaintiff relied on such guaranty, and whether there were defects in the airplane which necessitated expenditures to make it conform to the guaranty. In such event, the jury would credit the defendants with any damages which they suffered as the proximate result of the failue of the plaintiff to maintain his guaranty; and if such credits equalled the balance due, the jury would find a verdict for the defendants. The instructions, when read and considered together, were not contradictory or misleading and constituted a sufficient statement of the law on the issue submitted to the jury.
(Hn 4) The defendant had a larger number of witnesses, but we cannot say that the verdict was contrary to the great weight of the evidence.
Consequently the cause is affirmed.
Affirmed.
Roberds, P.J., and Holmes, Arrington and Ethridge, JJ., concur.