Opinion
No. 27250.
June 11, 1928.
1. VENUE. Purchaser held not entitled to removal of proceeding to enforce purchase-money lien on automobile seized in county of seller's residence ( Hemingway's Code 1927, section 500).
Where automobile was seized in county of seller's residence for purpose of enforcing purchase-money lien thereon, purchaser was not entitled under Code 1906, section 707 (Hemingway's Code 1927, section 500), to removal of case to county of her residence, since right of court to try proceeding in rem does not depend on time res had been in territory over which it has jurisdiction, but upon its seizure therein.
2. PRINCIPAL AND AGENT. Consent to selling property confers no authority to exchange.
Consent by one that another may sell property for him confers on such other authority to sell property for cash only, and not to exchange it for other property.
3. PRINCIPAL AND AGENT. Salesman's authority to sell automobile did not confer on him authority to exchange same for other automobile.
Salesman's authority to sell automobiles for owner did not confer on him authority to exchange them for other automobiles, in absence of special authority to do so or general custom or usage from which such special authority could be inferred.
4. PRINCIPAL AND AGENT. Authority to exchange property is not implied from or within apparent scope of authority to sell.
Authority to exchange property is not implied from or within the apparent scope of authority to sell property for another.
5. PRINCIPAL AND AGENT. Evidence that salesman was without authority to exchange automobiles for others held admissible, though probably unnecessary.
In suit for purpose of enforcing purchase-money lien on automobile, evidence to effect that seller's agent had no authority to exchange automobiles for others held admissible, though probably unnecessary in view of fact that his authority to sell automobiles did not confer upon him authority to exchange.
6. APPEAL AND ERROR. Assignment that record showed judgment was contrary to evidence and law held too general for review of alleged defect in county court's judgment.
Assignment of error in circuit court that record shows that judgment of court was contrary to evidence in the case and the law in the case held too general to authorize review of county court judgment, since not suggesting alleged defect in form thereof.
7. APPEAL AND ERROR. Assignment of error should be specific.
An assignment of error should be specific enough to point out the particular error complained of.
8. APPEAL AND ERROR. Errors committed in county court, not complained of in circuit court on appeal thereto, are waived.
Errors committed in county court which are not complained of in circuit court on appeal thereto are waived and will not be considered by supreme court.
9. APPEAL AND ERROR. Circuit court had no authority to enter summary judgment on appeal bond superseding judgment of county court ( Hemingway's Code 1927, sections 725-738, and section 3409).
Summary judgment in circuit court on appeal bond superseding judgment of county court not being authorized by Hemingway's Code 1927, sections 725-738, such court was without power to award summary judgment after affirming judgment of county court, and was required instead to remand case to county court for enforcement of its judgment as provided by section 729, appellate court being without authority to render such judgment without express statutory authority therefor such as is conferred on supreme court by Code 1906, section 4928 (Hemingway's Code 1927, section 3409).
APPEAL from circuit court of Forrest county; HON. R.S. HALL, Judge.
Currie Currie and D.T. Currie, for appellant.
The only transaction binding the parties was the deal made by Mrs. Eaton and Mr. Brannon, as set forth in Mrs. Eaton's testimony, in which the deal was made whereby she turned in her new Dodge at its sales price for the Buick two door and was to pay the difference of three hundred thirty dollars. We submit that the proper venue of the case was in Lamar county, Mississippi, and that the county court of Forrest county was without jurisdiction and without authority of law to try said cause. Roberts v. Stewart Bros. (Miss.), 103 So. 194; West Point Motor Co. v. McGehee, 122 Miss. 604, 84 So. 690. In these cases the property seized was "located" or "situated" in the county where the action was brought. The situs of the property was fixed and, for the time being, permanent, but in the case at bar the property was not located or situated in the county of Forrest, but was located and situated in Lamar county, Mississippi. At the time the levy or seizure was made the appellant was driving the car, in transit from Hattiesburg to Sumrall.
To hold that this automobile, while being driven by appellant and being seized by the officer only after he had intercepted appellant while traveling on the highway, was located or situated in Forrest county is entirely too narrow a construction to be placed upon the statute. The evidence showed that Mr. Brannon was one of his general salesmen and appellee was bound by the acts of his agents within the scope of his employment, or the apparent scope of his employment, and could not defeat this transaction testified to by Mrs. Eaton by any secret reservations on the part of appellee as to authority within the general scope or apparent scope of the agent, Brannon.
The judgment rendered by the circuit court in hearing the case on appeal from the county court is not only erroneous because it affirmed the lower court's judgment in rendering a personal judgment against appellant and the sureties on her bond for the amount sued for without assessing the value of the property and without there being any evidence in the record at all as to its value. But the authority of the circuit judge in hearing and determining said cause on appeal is fixed by section 5 of the Acts of 1926, which act creates the county court and which section prescribes the duties, limitations and powers of the circuit court in hearing appeals. It was the duty of the court, under the law fixing its power, and the only thing the circuit court could do after affirming it was to remand the cause to the county court for enforcement.
Morris Wingo, for appellee.
This suit and the entire proceeding was predicated upon section 2437 of Hemingway's 1917 Mississippi Code, which provides the manner in which a seller of personal property may enforce his statutory purchase-money lien thereon. In the instant case, the sheriff of Forrest county, was directed to levy upon such property, real and personal, of the appellant found in his county, and the automobile in question was found in Forrest county, in the possession of the defendant, appellant here, and was therefore levied upon. This court has repeatedly held that an action in replevin was in rem; and that also mechanic's and materialmen's lien suits and suits in attachment were actions in rem. It cannot be argued with seriousness, therefore, that a purchase-money lien suit is not an action in rem, when the statute plainly and unmistakably provides that after declaration and affidavit has been filed "the clerk of the court shall issue writ of summons and seizure commanding the officer to seize the property and deal with it as in cases of attachment for debt." Smith v. Mulhern et al., 57 Miss. 591; Barnett v. Ring, 55 Miss. 97; West Point Motor Co. v. McGehee, 122 Miss. 604, 84 So. 690.
The purpose of section 164, Hem. 1927 Code, should be sought in an effort to ascertain the legislative intent. The word "assess" as used in this section could mean nothing more than "to fix or to determine." The statute then is intended to provide a means by which the liabilities of the defendant and sureties may be separately ascertained and fixed but it will be noted that the purpose of the statute fails when the value of the property replevied exceeds the amount sued for, because in this instance the liability of all of the parties is for the full amount sued for. Counsel for appellant contends that there is no proof in the record from which the court could ascertain the value of the automobile at the time levy was made thereupon by the officer. The record in this case shows that the automobile was levied upon on the 23d day of September, 1927, (page 4) and the record further shows that on the following day that the appellant entered into and executed a bond wherein appellant fixed the value of said property at one thousand two hundred fifty dollars, the amount of the bond being two thousand five hundred dollars; it clearly seemed to us that if appellant on the day after the levy fixed the value of the automobile in question at two and one-half times the amount sued for that the county judge was well within his province in ascertaining the value to be in excess of the amount sued for. There is ample proof in the record that the automobile in question had been purchased less than thirty days prior to the date of levy, at and for the consideration of one thousand six hundred forty-five dollars, which was the regular cash selling price of a new Buick automobile of the model in question. It further appears that the appellant had given what appellant was pleased to describe as a new Dodge automobile of the value of one thousand one hundred forty-five dollars, and in addition thereto to actually tender into court on the date of trial the further sum of three hundred thirty dollars. With all of these facts before the county judge can it be reasonably assumed that he acted without evidence as to value?
We submit that the record discloses that appellant has had a fair trial in accordance with the laws of this state and that the whole procedure is regular in every step, and that this cause should therefore be affirmed.
Argued orally by N.T. Currie, for appellant.
This suit was begun in the county court of Forrest county by the appellee to recover a balance of five hundred dollars alleged to be due the appellee on an automobile sold by it to the appellant, and for the enforcement of a purchase-money lien on the automobile.
A judgment was rendered in the county court for the appellee, the case was then carried by the appellant to the circuit court, where the judgment of the county court was affirmed, and the appellant then brought the case to this court.
The evidence discloses that the appellant, shortly after purchasing a Dodge car, decided that she would prefer a Buick, and entered into negotiations with one of the appellee's salesmen for the purchase from it of a Buick. The evidence was to the effect that this salesman, whose name was Brannon, agreed to exchange a Buick with her for her Dodge and the payment by her of three hundred thirty dollars in cash. The Buick was afterwards delivered to her by Brannon, but he declined to accept three hundred thirty dollars as the amount to be paid in cash by her therefor, and the appellee's manager to whom she was referred by Brannon, declined also so to do. Afterwards she had another understanding with Brannon, who, she says, agreed for her to take the Buick; that he would sell the Dodge for the best price obtainable, and she could pay the difference between that and the price of the Buick. To this she did not agree, but told Brannon the most she would pay was three hundred thirty dollars. She tendered and was willing to pay the appellee three hundred thirty dollars in settlement of the amount due it by her.
Brannon denies having agreed to exchange automobiles with the appellant on the payment by her of three hundred thirty dollars, his testimony being to the effect that in their preliminary negotiations nothing was said as to the amount in cash the appellant would have to pay, and that the final negotiations between them ended in Mrs. Eaton's agreement to exchange her Dodge for the Buick, and, in addition, to pay the appellee the sum of five hundred dollars.
When the appellant rested her case, the appellee, in rebuttal, introduced its manager, who testified over objection by the appellant that Brannon, the salesman with whom Mrs. Eaton negotiated for the purchase of the automobile, was without authority to take other automobiles in exchange for Buicks except with his (the manager's) approval.
The case was tried by the county judge without a jury.
The appellant lives in Lamar county, but the appellee's place of business is in Hattiesburg, in Forrest county. When the automobile was delivered to Mrs. Eaton, it was carried by her, or by her daughter for her, to her home in Lamar county, and there kept by her. Having occasion to go to Hattiesburg, she went in the automobile purchased from the appellee, and, while there, this suit was begun. The automobile was levied on by the sheriff while she was in it on her way home, but still in Forrest county.
When the case came on for trial, the appellant filed a motion for the removal of the case to Lamar county under the provisions of section 707, Code 1906 (Hemingway's 1927 Code, section 500), which motion the court overruled, and committed no error in so doing. West Point Motor Co. v. McGehee, 122 Miss. 604, 84 So. 690; Roberts v. Stewart Bros. (Miss.), 103 So. 194. The appellant contends that these cases are not controlling here, for the reason that the property on which the purchase-money liens were there claimed was permanently located in the county where it was seized, and that such is not the case here. The right of a court to try a proceeding in rem does not depend on the time that the res has been in the territory over which its jurisdiction extends, but upon its seizure therein. As the evidence was conflicting, the court below committed no error in affirming the judgment of the county court thereon.
With reference to the ruling of the county court in admitting the appellee's evidence in rebuttal as to Brannon's authority to accept used automobiles in part payment of automobiles sold for the appellee by him, the appellant's contentions are: (1) that this evidence should have been introduced in chief, and not in rebuttal; and (2) that it was incompetent in any event, for the reason that to accept automobiles in part payment for automobiles sold by him was within the apparent scope of Brannon's agency, and therefore she had the right to rely thereon. This evidence was not in rebuttal, and did not become necessary until the appellant testified and gave her version of the contract made by her with Brannon for the purchase of the Buick.
The consent by one that another may sell property for him confers on such other authority to sell the property for cash only, and not to exchange it for other property. 2 C.J. 599. This rule is set forth in Am. L. Inst. Restatement, Agency (Tent. No. 3), section 316, as follows:
"A manifestation of consent by one person that another, as his agent, may make a contract to sell or a sale of personal property is, in the absence of usage or anything indicating a different meaning, interpreted as not including consent to: . . . (b) An exchange or barter; . . . or (g) a sale for a consideration; . . . (i) not payable in money."
Brannon's authority, therefore, to sell automobiles for the appellee, did not confer upon him authority to exchange them for other automobiles, and neither a special authority from the appellee to him so to do nor a general custom or usage from which such special authority could be inferred was proven. One use of the expression "apparent authority" is "to designate that class of incidental authority which is implied from the express or declared authority, and which the third person dealing with the agent may properly assume to go with the declared authority unless the contrary is made known." 2 Mechem on Agency (2 Ed.), section 721. Such, we presume, is the use here made thereof by counsel for the appellant.
Authority to exchange property is not implied from or within the apparent scope of authority to sell property. Woodward v. Jewel, 140 U.S. 253, 11 S.Ct. 784, 35 L.Ed. 481; Kearns v. Nickse, 80 Conn. 23, 66 A. 779, 10 L.R.A. (N.S.) 1118, 10 Ann. Cas. 420, and note thereto. Consequently, the evidence by the appellee that Brannon was without authority to exchange automobiles for others, while probably unnecessary, was admissible.
The appellant gave a forthcoming bond for the automobile, and the judgment of the county court awarded the appellee a recovery thereon. One of the appellant's contentions is that this judgment, the provisions of which it is not necessary to set forth, is erroneous in so far as it affects the sureties on the bond.
One of the contentions of counsel for the appellee is that this alleged defect in the judgment of the county court should not be here considered, for the reason that it was not assigned for error in the circuit court. The only assignment of error in the circuit court which remotely refers to this alleged defect in the judgment is the seventh, which is: "The record shows that the judgment of the court is contrary to the evidence in the case and the law in the case." An assignment of error should be specific enough to point out the particular error complained of, and this assignment is not only so general as not to suggest the alleged defects in the form of the judgment, but seems clearly to mean that the county court erred in rendering a judgment for the appellee. We will therefore express no opinion as to the correctness of the judgment of the county court in so far as it affects the sureties on the forthcoming bond, for the reason that errors committed in a county court not complained of in the circuit court, on appeal thereto, are waived. We express no opinion on the right of the circuit court to pass on a plain error by the county court though not embraced in the assignment of errors, for it does not appear that the circuit court did that here.
The circuit court, after affirming the judgment of the county court, instead of remanding the case to the county court for the enforcement of its judgment, as provided by section 5, chapter 131, Laws of 1926 (Hemingway's 1927 Code, section 729), rendered a judgment on the appeal bond, which included a supersedeas, for the recovery by the plaintiff of the amount sued for and awarded to it by the county court, with six per cent. interest thereon from the date of the county court's judgment.
The statute creating and governing the procedure in the county courts, chapter 131, Laws of 1926 (chapter 14, Hemingway's 1927 Code), does not authorize a summary judgment in the circuit court on an appeal bond which supersedes the judgment of a county court; and without express statutory authority therefor, an appellate court is without authority to render such a judgment. 4 C.J. 1305. The authority of the supreme court so to do is conferred by section 4928, Code 1906 (Hemingway's 1927 Code, section 3409). The circuit court was without power to award a summary judgment on the appeal bond, and, on affirming the judgment of the county court, should have remanded the case to that court for the enforcement of its judgment.
The judgment of the circuit court will be affirmed in so far as it affirms the judgment of the county court, but will be reversed in so far as it awards the appellee a recovery on the appeal bond; and the case will be remanded to the circuit court, with direction to remand it to the county court for the enforcement of its judgment.
Reversed in part and remanded.