Opinion
No. 31095.
February 26, 1934.
PRINCIPAL AND AGENT.
Where judgment debtor conducted filling station under agreement with third party who furnished gas and oil for sale at fixed commission, and no sign was posted disclosing ownership of property, gas and oil found at filling station held subject to execution taken out by judgment creditor to satisfy judgment, notwithstanding ownership of such oil and gas by third party (Code 1930, section 3352).
APPEAL from Circuit Court of Union County.
Chas. Lee Crum, of New Albany, for appellant.
By section 3352, Code of 1930, it is provided by statute, that any person transacting business as trader, or otherwise, where the business sign does not disclose the names of each member of the firm, all property, stock, money and chose in action used or acquired in such business shall, as to creditors, be liable for the debts of such person, and shall in all respects be treated so far as the rights of his creditors are concerned, as his property.
It is entirely immaterial under the "sign statute" who paid for the license to do any of this business, or who supplied the several articles of merchandise, or whether the articles were sold to him outright, or merely consigned to him on commission for sale. He possessed the gas and oil levied on at the time of the levy, and was using it to sell in his business, and having thus acquired it in his business, it does not matter whether he held it by purchase, or by consignment to be sold on a commission basis, for this property was and is liable to be sold and applied to the payment of the judgment of appellant, under the terms of section 3352 of the Code.
Gumble v. Koon, 59 Miss. 264; Quinn v. Miles, 59 Miss. 375; Shannon v. Blum, 60 Miss. 828; Wolf v. Kahn, 62 Miss. 814; Loeb v. Morton, 63 Miss. 280; Paine v. Hall, 64 Miss. 175; Land Co. v. Ormand, 82 Miss. 758; Durant Motor Co. v. Simpson, 133 So. 672.
B.N. Knox, of New Albany, for appellee.
Appellant bases its case strictly on what is termed as the "sign statute." If the levy in this case had been had before January 1, 1933, while Bratton was operating the station as his business, the contention of appellant would be well taken, but at the time of the levy he was not "transacting any business as trader, or otherwise, where the business sign does not disclose the names of each member of the firm. . . ." He was not a member of any firm, he was not a trader. He was merely an employee of Robbins.
Harris v. Robson, 68 Miss. 506.
Unless the property was "used or acquired" in the business with the consent of the real owner, it does not become liable under the section.
Hall v. Berg, 65 Miss. 184; Adams v. Berg, 67 Miss. 234.
The goods of a principal are not liable to the debts of a mere clerk. To make the goods liable to the debts of one not the owner thereof, he must have "transacted the business under his own name."
Carbury v. Burns, 68 Miss. 573; Harrison v. Robson, 68 Miss. 506; Schoolfield v. Wilkins, 60 Miss. 238.
By virtue of a judgment in favor of the appellant, Louisiana Oil Corporation, against I.L. Bratton, an execution issued, and the sheriff levied on gasoline and oil found in the possession of Bratton. Robbins made claims to the property, issue was made up and tried in the circuit court, whereupon a peremptory instruction in favor of the claimant, Robbins, was granted; and the appellant, Louisiana Oil Corporation, prosecutes an appeal from the judgment resulting.
Prior to January 1, 1933, Bratton operated a filling station, which was owned and rented to him by the claimant, Robbins, selling thereat motor oil, tires (on commission), and coca cola. On January 1, 1933, Bratton being unable to pay the rent, Robbins agreed to furnish Bratton gasoline and motor oil to sell, Bratton to collect for the oil and gas and retain a fixed commission for selling the same, and to pay Robbins therefor after the sale. The sign under which all the trading was conducted was "City Service Station;" and Bratton continued to sell tires, gas, motor oil, and coca cola as before. Robbins paid the privilege tax license for the sale of gasoline and motor oil — in other words, according to the evidence of both of them they had property in the business, although the business was actually conducted by Bratton before and after 1933. The execution was levied in May of that year.
Under this state of facts, as far as the creditors of Bratton are affected, the property acquired in that business by Bratton as a trader before and subsequent to January 1, 1933, was liable for the payment of his debts, and, as to his creditors, could be treated as his property. In that situation, Robbins could have protected himself by placing a sign at the place of business with his own name thereon, thereby disclosing his ownership in the property there found. Section 3352, Code 1930.
The decision of this case is controlled by Loeb Bloom v. Morton Co., 63 Miss. 280, and Paine v. Hall Safe Lock Co., 64 Miss. 175, 1 So. 56. We quote from the former case the following: "Our view of section 1300 of the code is that it makes `all the property, stock, money, and choses in action used or acquired in such business' the property of him who transacts the business and liable for his debts, without regard to the sign under which the business may have been transacted. The statute does not make the sign the test of ownership, but has regard to who transacts business and deals with the property as apparent owner, and stamps it as his for the purpose of liability to his creditors. Signs may deceive and mislead, but there is little difficulty in determining who transacts business as to property, and, without regard to the sign, the question is, Who transacted business with the property? He is to be taken as owner of all the property who transacted the business in which it was, unless by a proper sign the true ownership is indicated. The business must be done under the name of the true owner of the property, or else he who transacts the business is conclusively adjudged to be such owner because of his relation to it."
The case of Adams v. Berg, 67 Miss. 234, 7 So. 225, is not in conflict herewith. The case of Payne Hardware Co. v. International Harvester Co., 110 Miss. 783, 70 So. 892, is likewise in point. The payment of a privilege tax by either of the parties does not affect the interpretation of the statute. Exceptions will not be ingrafted on the statute. Gumbel v. Koon, 59 Miss. 264.
The appellant was entitled to the peremptory instruction requested by it, and judgment accordingly will be entered here.
Reversed, and judgment for appellant.