Opinion
December 13, 1948.
1. Replevin — when action completely dismissed property seized under the writ is no longer in custodia legis.
When a writ of replevin is dismissed, the action voluntarily nonsuited and the costs paid by the plaintiff, the property seized under the writ is no longer in custodia legis. Hence second writ for same property is not to be quashed on ground that property was then in custodia legis.
2. Replevin — giving bond by defendants admits possession by them.
When all the defendants have given bond in an action of replevin, they thereby admit possession and writ is not to be quashed on the ground that they were not parties in possession.
3. Replevin — joinder of defendants by the symbol "and/or," not improper.
In an action of replevin the defendants are not improperly joined or designated by the symbol "and/or."
4. Replevin — demand — when previous action sufficient.
A previous action althought voluntarily dismissed will serve as a demand in support of a second action for the same property, especially when there were negotiations between the parties in the interim.
5. Replevin — affidavit in replevin a part of record on demurrer to the declaration.
The affidavit in replevin is a part of the record and can be noticed upon demurrer to the declaration.
6. Interrogatories to non-resident plaintiff — motion to suppress — too late after witness has personally appeared as a witness.
Motion to suppress answers to interrogatories addressed to non-resident plaintiff is too late when not made until plaintiff had personally appeared in court and was ready to testify.
7. Chattel mortgage — evidence — installment payments.
When a chattel mortgage debt payable in installments is, in the matter of payments actually received, in default at the time of the seizure in replevin to enforce the debt, it is immaterial that it may have been the consistent practice of the mortgagee to receive the payments by postal money order or by telegraph.
8. Chattel mortgages — replevin on default — judgment allowable only for the limited interest of the mortgagee.
In an action of replevin by the mortgagee to recover the mortgaged property on default of the mortgagor, the mortgagee must deal with the property as security and is entitled to judgment only for the amount of his limited interest therein, and not for the property itself except in the alternative for failure to discharge the amount of the limited interest.
9. Chattel mortgage — replevin on default — judgment.
A mortgagor in default is not privileged to claim acquittance in an action of replevin by the mortgagee by a redelivery of the property if it has deteriorated by use pending conclusion of the litigation, nor is the plaintiff to be allowed to fix the value of the property as liquidated damages regardless of the extent of his interest therein.
Headnotes as revised by Alexander, J.
APPEAL from the circuit court of Harrison County; L.C. CORBAN, J.
Albert S. Johnston, for appellants.
So far as the record shows, no competent evidence was introduced to show any demand on appellant Martin or appellant Rogers, for payment of the installment alleged to have come due at the time the replevin suit was filed. J.M. Marriott, Assistant Cashier of The Merchants National Bank of Mobile, Alabama, testified, with reference to the failure of the Western Union Tel. Tel. Co. to deliver the entire proceeds of a payment made by Martin — that only $300.00 was received by the Bank. This witness admitted that the Bank did not, so far as he knew, give any notice to appellants of the Bank's purpose to declare the entire indebtedness due.
The possession of Dees Chevrolet Company, Inc., one of the defendants, was the custody of the law — the property was stored there by the sheriff of Harrison County at the instance of the appellee by virtue of prior proceedings, pending when the instant case was filed. The officer did not surrender such possession. The property here was simply transferred from the possession of defendant Dees Chevrolet Company, Inc., for the sheriff in one case, to such possession by the sheriff in the other.
In the case of Union Motor Car Co. v. Farmer, 151 Miss. 734, 118 So. 425, the court said that replevin does not lie for property in custodia legis. In Frizell v. White, 27 Miss. (5 Cushm.) 198; Johnson v. Sanders, 148 Miss. 472, 114 So. 334; and Bell v. Smith, 155 Miss. 227, 124 So. 331, the court held that it is indispensable, as well at common law as under the statute, that the plaintiff, to maintain the action of replevin, should have the right of immediate possession of the property. In Hogan v. Commercial Credit Company, 150 Miss. 653, 116 So. 298, the court held that plaintiff in replevin must show that the defendant was in possession of property and that possession was unlawful. Again, in Cook v. Waldrop, 160 Miss. 862, 133 So. 894, the court held that replevin action lies only against party in possession when action is begun.
All three of the defendants could not, in this case, be in possession of the property. As a matter of fact, appellee's declaration shows, on its face, that the property was in the possession of Dees Chevrolet Company, Inc., by virtue of a prior seizure at the instance of plaintiff, appellee.
Defendants in replevin cannot be sued in the alternative. They cannot be joined in such action by "and/or" or "or", but must be conjunctively joined, or not at all. Can it be said from the affidavit, and the writ of replevin, who had possession? Plaintiff shows he did not know; he sued the defendants as "and/or."
The court erred in sustaining motion to suppress interrogatories to non-resident plaintiff, appellee, filed in this cause on January 16, 1948, as the record shows the cause was not tried until January 23-24, 1948. Sec. 1712, Miss. Code of 1942. Appellants were entitled to answers to their interrogatories; they could not get the information from the witness in the court room. The questions are pertinent to the issues and appellants were prejudiced by failure to require appellee to answer.
The court erred in refusing to permit appellants to introduce evidence and show that payments on their obligation, or the obligation of James C. Martin to The Merchants National Bank of Mobile, Alabama, were being made by Western Union Money Order; that the Bank received said payments; that such was the method and means adopted by James C. Martin, and known to and approved by said Bank; and the court erred in refusing to permit appellants to offer evidence to show and prove such method of payment, that money had been wired via Western Union to said Bank, and was so wired to said Bank before suit was brought against appellants, and that the Western Union had mony of appellants to pay and discharge installments alleged to be due and owing, and because of which replevin suit was filed against appellants.
Appellants showed, we submit, a course of dealing from which such authority may be inferred; they, or either of them, were given authority to remit in the manner shown, or attempted to be shown, and that is by Western Union money order. Appellee did not dispute the fact; the Assistant Cashier of the Bank admitted it. It was a question of fact for the jury as to whether or not appellants wired the money to the Bank in Mobile, Alabama, and whether or not they were in default in the payment of one or more installments when the suit in this present cause was instituted. If, as they sought to show, they wired the money via Western Union, and had a receipt bearing date and hour sufficient to show, and prove, they wired the money in ample time to reach the Bank on the date that the suit was filed, then, certainly, they were not in default, and this suit was filed without justification or cause. The Bank was duty bound to inquire of Western Union, and that way it would have discovered the error of the carrier, and learned that an additional sum of $75.00 was available to apply on Martin's note. The last $375.00 wired the Bank, via Western Union, on November 13, 1948, at 12:05 P.M., which the trial court refused to admit in evidence, and refused the jury permission to consider, by granting a peremptory instruction for appellee, certainly reached Mobile, Alabama, within banking hours. The fact that the witness admitted receipt of this money and returned it on November 17th, 1947 — four days later — was certainly a circumstance to be considered by the jury. With the receipt of the additional $75.00, received by Western Union, to the credit of the Bank, and which the Bank was advised of before the trial of this cause, fully paid the installment claimed to have only partially been made, and with payment of $375.00 on November 13th, 1948, at 12:05 o'clock P.M., which the Bank returned to appellant, Martin, on November 17th, 1948, brought appellant, Martin's account with the Bank almost current. On the trial of the cause, appellant Rogers tendered into court an additional $375.00 and all costs, bringing the account up to date. These payments, and they were payments — the money was available to the Bank — should have been considered by the jury. The offer of appellants to show payments in this manner was certainly competent. The parties had established a course of dealing between themselves which made this mode of paymnt proper. Sec. 35, 40 Am. Jur. 736.
The court erred in granting Instruction No. 2 for appellee, which instruction is in the following language, to-wit: "The court instructs the jury for the plaintiff that the form of your verdict should be: We, the jury, find for the plaintiff and fix the value of the property as follows: One 1944 used Mack Tractor (New White Motor No. 140 A 20364) (Formerly bearing Motor No. 120-106 50), Chassis No. EHT-1S2430, at $ ____ and One 1944 Kingham Refrigerated Van Trailer, Model R-30, Serial No. 15685, at $ ____."
Section 2860, Miss. Code of 1942, provides: "If the plaintiff recover, and the defendant has given bond for the property, the judgment shall be against the defendant and the sureties on his bond, that they restore the property to the plaintiff, if to be had, or pay him the value thereof, or of his interest therein, if a limited one, as assessed by the verdict of the jury, and that they pay to the plaintiff such damages as shall have been assessed by the jury for the wrongful taking and detention, or for the wrongful detention thereof; . . ." Hill v. Petty, 111 Miss. 665, 71 So. 910; Evans v. Junius Hart Piano House, 140 Miss. 467, 106 So. 9.
Plaintiff, appellee, was duty bound to ask and receive an instruction to the jury to find in the alternative for the return of the property or the value of his limited interest therein, as fixed by the jury. As evidencing the fact that the instruction was erroneous, and not understood by the jury, is the fact that the verdict of the jury is in the following language: "We, the jury, find for the plaintiff and fix the value of the property as follows: "One 1944 used Mack Tractor (New White Motor No. 140 A. 20364) (Formerly bearing Motor No. 120-106 50) Chassis No. EHT 1S2430, at $2,000.00 and One 1944 Kingham Refrigerated Van Trailer, Model R-30, Serial No. 15685, at $2,000.00."
In the case of Bond v. Griffin, 74 Miss. 599, 22 So. 187, the court held that if the testimony shows that plaintiff has only a limited interest in the property an instruction announcing his right to recover should confine the right to the value of such interest.
In the case of Hill v. Petty, 111 Miss. 665, 71 So. 910, the court held that where the property replevied is of greater value than the claim against it, the jury should be instructed as to plaintiff's interest and judgment of the court should be in the alternative the payment of the interest or restoration of the property.
In the case of Evans v. Junius Hart Piano House, 140 Miss. 467, 106 So. 9, the court held that in a replevin suit where the paintiff's interest is limited to the amount of the balance due under a conditional sale contract, it is incumbent on the plaintiff to show that the property in controversy has not been paid for, defendant's default, and the amount due.
In the face of the verdict of the jury, and the judgment of the court, appellants would be required to pay the sum and amount of $4,000.00 to appellee if they elected to keep the property, under the form of alternative judgment rendered in this cause.
While the contract of mortgage was executed in the State of Alabama, and the contract ordinarily is governed by the lex loci contractus — that is such contract is to be interpreted according to the law of the place of the contract, we believe a different rule applies here. We respectfully invite the court's attention to 11 Am. Jur. 357, 358, and 359, Sec. 74, and more particularly the following: "The general rule of the law of the place where the contract is made governs as to its validity and construction and that the law of the forum governs as to the remedy clearly applies also to chattel mortgages, where the property is located in the same jurisdiction in which the mortgage is executed."
"Where a mortgage is executed and delivered in one jurisdiction upon personal property then located in another, the great weight of authority is to the effect that the validity of the mortgage is governed by the law of the state where the property is situated. The rule recognized by all authorities where the rights of third parties paramount to those of the mortgagor, such as those of attaching or levying creditors or bona fide purchasers, intervene is that the validity and effect of the chattel mortgage are to be determined by the law of the state where the property which is the subject of the chattel mortgage was situated at the time when the mortgage was executed. Where the question is as between the original parties or third parties whose rights do not rise above those of the mortgagor, there is a difference of opinion. One view is that in such a case the contractural aspects of the mortgage are predominant and the transaction is governed by the law of the place where the contract is made. Another view, however, is that the property aspects of the questions involved are predominant, that the contractural features are secondary, and that therefore even in such a case the law of the situes of the property governs. The recent trend is said to be away from the contractural aspect of such conveyance and away from the old maxim, `mobilia sequuntur personam'."
When the mortgagee consented to accept a mortgage on the personal property involved in this case, from appellants, resident citizens of the State of Mississippi, resident in Biloxi, Harrison County, it was certainly known and understood that the personal property covered by the mortgage would be kept by Martin in Biloxi, Mississippi, and that it may be said with confidence that the mortgagee tacitly and impliedly consented to be governed by the laws of the State of Mississippi, in the enforcement of said mortgage should enforcement ever be necessary, as now appears to be the case. Here we have a citizen of Alabama seeking, in the courts of Mississippi, to gain possession of chattels covered by a mortgage so that he might foreclose said mortgage in the State of Alabama. We respectfully submit that the Laws of the State of Mississippi should govern, and do govern, in this matter. J.D. Stennis, Jr. and Thomas J. Wiltz, for appellee.
It will be noted from the record that the defendants Martin and Rogers were making what would appear to be conflicting claims, Martin and Rogers both having conducted themselves as owners of the property and both having kept and refused to give up the keys to the property when the sheriff seized the same and retaining the keys to this date. However, all of these questions appear to be more or less immaterial in the light of the case of Furst v. Pease, 97 Miss. 468, 52 So. 257, which holds the following: "The court below committed no error in charging the jury peremptorily to find the verdict for the appellee Pease. In view of the recitals of the forthcoming bond executed by Furst admitting possession of the property sued for, he will not be heard to deny that he had possession of it at the time of the institution of the replevin suit and the service of the writ. The recital in the forthcoming bond operates as an estoppel upon him to deny the possession of the property. It is an admission in most solemn form of the possession of the property by him." See also Vaughn v. Ruff, 99 Miss. 110, 54 So. 837.
It therefore appears from the authority of these cases and from the facts of the instant case, that appellants, defendants, or either of them would be clearly estopped from denying that they had possession of the property at the institution of the suit. The defendants have bonded out the property, two days after the seizure of same.
The appellant's charge in their brief that the defendants cannot be sued in the alternative but must be conjunctively joined and cite as authority therefor the case of Cook v. Waldrop, 160 Miss. 862, 133 So. 894. We cannot see where that case is any authority for that position or contention and if such procedure may be irregular or objectionable in some respects, it can only be in this instance that the appellants placed themselves in such position as to make such procedure necessary in the instant case and apparently used every effort and ruse to keep their rolling stock going as long as possible in order to avoid the orderly process of the law, which the plaintiff below sought to invoke; and it was difficult to locate said property by reason of the appellants having said equipment constantly on the move and in different states in connection with their hauling operations, in addition to operating same without insurance coverage to protect the plaintiff.
The appellants next assign as error the action of the lower court in overruling the numerous demurrers of the appellants and in their brief argue together the 2d 3rd, 4th, 5th, and 6th assignments of error since they all go to the error of the trial court in overruling the demurrers of appellants separately and severally and the appellee will likewise treat these together.
It is believed in this connection that counsel for the appellants have failed to take into consideration the fact that: "The affidavit in replevin is a part of the record and may be noticed on demurrer." Newell v. Newell, 34 Miss. 385. Taking the affidavit and the declaration and construing the same together, there is clearly charged against the defendants below a cause of action sufficient to withstand demurrer.
It is submitted that the appellants or either of them or any two of them are estopped to deny the fact that they were in possession of the property at the time of the institution of the suit, by them having bonded out the same. This fact is charged in the declaration and the mere fact that the property is charged as being at the Dees Chevrolet Company would be of no consequence in view of this fact and the proof submitted. It cannot be said that the defendants Martin or Rogers, in order to be in possession of said property, would have to be actually in the driver's seat, and it will further be noted from the authority cited in the brief for the appellants, Hogan v. Commercial Credit Company, 150 Miss. 653, 116 So. 298, that the court held that an action of replevin can be maintained only against the one in actual or constructive possession of the property sought to be recovered and it is contended that notwithstanding the aforesaid estoppel referred to, certainly the declaration was sufficient to withstand demurrer and admit of the case being submitted on the proposition of the actual or constructive possession of the defendants, which was accordingly done.
The appellants next indicate in Section 7 of their brief that the court erred in sustaining the motion to suppress the interrogatories to the non-resident plaintiff, the appellee, filed in the cause on January 16, 1948, as the record shows, the cause was not tried until January 24, 1948, citing Section 1712, Mississippi Code of 1942.
In the interrogatories, presented by defendants, it will be noted that the defendants sought to elicit various information from the plaintiff whereas plaintiff was in court and ready to testify on the date of the filing of these interrogatories, as reflected in the motion to suppress filed by the plaintiff, and the plaintiff also appeared on the trial the next week and testified, at which time the defendants had full opportunity to interrogate him as to any of these matters.
It is clear that this statute is intended to enable one of the parties to the suit to secure interrogatories where the other party will not be available to testify and even if this be error in the first instance, it can certainly be said that the action of the court did in no way prejudice the defendants, or either of them.
Further, it will be noted that: "This section was intended to enable resident parties to suit to take the evidence of a non-resident party for use in the suit and not to enable the resident party to explore all the business affairs of his adversary. Morrison v. Guarnty Trust Company, 191 Miss. 207, 199 So. 110." The interrogatories propounded were clearly a fishing expedition on the part of the defendants as indicated in the aforesaid case and the action of the court was correct in suppressing these interrogatories.
Appellants next charge error in the fact that the court refused to permit appellants to introduce evidence to show payments of their obligations to the Merchants National Bank were being made by Western Union money order. The record indicates clearly that the court permitted any evidence of payment and only excluded the money order receipts and there was ample evidence on behalf of the defendants to show just what payment was made and how payment was made and it is clearly apparent from the record according to the testimony of the defendants themselves that payments were sometimes made by Western Union, sometimes by mail and even sometimes in person. The record indicates without question that the payments according to the contract were to be made at the Merchants National Bank in Mobile and not at the Western Union office in Biloxi and defendants were fully permitted to testify as to the transmittal of monies in remittance and there was certainly no error in respect to this testimony.
The defendants have sought to avoid in every way possible the failure of their agent, the Western Union Company, to transmit the full amount of the monies. It could not, under any circumstances, be contended that the Western Union was the agent of the Mobile Bank or appellee, Perry Coker, or that payment to the Western Union at Biloxi was payment to the Bank in Mobile or Perry Coker.
As to the last ground for mistrial urged by the appellants, that is the introduction of the record in Cause No. 11, 101, this was clearly competent to show the disposition of the prior replevin suit and was competent in addition as unequivocal notice to the defendants of the claim of the plaintiff and would certainly be competent evidence to show a demand on the defendant Martin or Rogers in addition to the other demand made upon them for the property and in addition would be notice that the plaintiff Coker rather than the Bank claimed the right of possession.
The only assignment of error of the appellants which we consider that they seriously urge is the 15th, wherein the appellants complain of the instructions to the jury as to fixing the value of the property, it being considered by them that the instructions should have limited the value of the interest of the appellee therein. The appellants apparently attempt to limit the appellee to the balance due. The cases cited by the appellants deal with conditional sales contracts and deeds of trust. In the instant case we are dealing with a chattel mortgage, not a deed of trust. The chattel mortgage in question was an Alabama contract and as such would be governed by the Alabama law as to its construction and operation. We call the court's attention to the law of Alabama as announced by the Supreme Court of said State: "Personal rights and obligations arising out of executory contracts are usually held determinable by the ex loci contractus. 11 Am. Jur. 336; 11 Am. Jur. 423, 425, sections 131, 132, and 133."
Appellants confuse law governing the questions raised concerning the promissory note secured by the chattel mortgage involved with the law governing the construction of the chattel mortgage.
The promissory note was made in Alabama secured by mortgage executed in Alabama on personal property, a part of which was situated in Alabama at the time. It was payable in Alabama, in monthly installments, except upon default, in which event the whole balance might be declared due, and which was declared due after default. Alabama has no law against acceleration. Certainly this note, payable in Alabama is governed wholly by the laws of Alabama. 11 Am. Jur. 423 and 424, Sections 121 and 132. Even if appellants had tendered the amount due under the installment feature of the note, which they never did do, this would not have effected the taking them out of default, for the Mississippi statute relied on had no application.
While the mortgage secured the note it was a separate and a distinct thing, apart from the note. And since this mortgage was executed in Alabama to the Bank of Alabama, securing the note, payable in Alabama, and on property, at that time, partly situated in the State of Alabama, we submit that this contract was likewise an Alabama contract and was required to be construed under the laws of Alabama. Should we, for the purpose of argument, concede that the mortgage should be construed according to the laws of Mississippi we would nevertheless arrive at the same conclusion, that appellee was entitled to the immediate possession of the mortgaged property, for under our law replevin suits do not determine equities, but are to the same effect as the Alabama law. "Under the theory of mortgages prevailing in this state, nothing can be clearer than the proposition that after default the legal title of the mortgagee is perfect. Indeed foreclosure adds nothing to the legal title and its only office and value is to cut off the equity of redemption. The mortgagee's legal title carries, of course, the right to possession and in the case of chattels, possession taken by the mortgagee after default leaves in the mortgagor no interest except an equity of redemption which is connizable and enforceable only in a court of equity." Harmon v. Dothan National Bank, 64 (Alabama) So. 621.
Code of Alabama 1940, Title 47, Section 181, provides: "Payment of the mortgage deed whether on real or personal property divests the title passing by the mortgage."
The 15th assignment of error is therefore without merit because upon default the appellee had become invested with the complete legal title and was the absolute owner of said property not just a limited interest therein as might be the situation under a deed of trust which required foreclosure to complete the title in the mortgagee or beneficiary, and under the circumstances appellee was required to have his value fixed at the full value as we were not dealing with a limited interest.
On condition broken, the holder of a chattel mortgage giving the mortgagor the right to retain possession so long as there is no default under the mortgage, mortgagee is entitled to immediate possession and may enforce said right in a replevin suit. His interest is not a limited interest. Harmon v. Dothan National Bank, 64 (Ala.) So. 621; Code of Alabama 1940, Title 47, Section 181 (Page 21 supra); Thornhill v. Gilmer, 4 Smedes M (12 Miss.) 153.
In such case the only instructions necessary to be given the jury are: 1st, To find for the plaintiff; 2nd, That they assess the value of the property; and 3rd, That the value may be determined by them taking into consideration the value placed thereon by the sheriff at the time of the seizure and any other evidence introduced on the trial. The judgment shall then be, where defendant has bonded the property out, against the defendants and their sureties of the bond, that they restore the property to the plaintiff, if to be had, or pay him the value thereof, as assessed by the verdict of the jury, plus such damages as have been assessed. Sec. 3098 Miss. Code 1930; Sec. 2860 Miss. Code 1942; 46 Am. Jur. 82, 83, Sections 152-154; 46 Am. Jur. 85, Section 159.
The appeal was perfected before a writ of execution could issue, by appellants filing a supersedeas bond. Hence the damage which has been inflicted by the use of said property in the lucrative business testified to by them, inflicted since the perfection of the appeal, has not been assessed. This question would not arise except for the fact that appellees may now attempt to surrender the property without payment for its damage through such use. While appellee is entitled to recover the value assessed by the jury plus the statutory penalty if the property is not returned, he is in the alternative entitled to have the property withheld from him returned to him in as good condition as when seized, or to damages for the amount of its deterioration in addition to the property itself. Of course, this matter would arise on a suit, on appellants' bond, for these damages, but with appellants given to a resort to technicalities as this record discloses it can be anticipated that unless the judgment of this court specifies that they shall be so liable, on a trial of such issue they shall contend that this question is res judicata, and that all that is required is that the property be restored. See 46 Am. Jur. 83, 84, Sec. 155 and 76, sec. 140.
Coker sued in replevin for the possession of a tractor and a trailer. These units had been sold by Coker to Martin who borrowed the price from the Merchants National Bank of Mobile. The note evidencing such indebtedness was endorsed for accommodation by Coker, and provided for monthly installments of $375. It was secured by a chattel mortgage executed in Alabama.
Martin made several payments, some by mail and others by telegraph. Upon default the bank compelled Coker to pay the balance due and assigned the note and chattel mortgage to him. On November 12, 1947, Coker sued out a writ of replevin in Harrison County, Mississippi, where the property was located, making Martin a defendant. The sheriff seized the property and stored it with Dees Chevrolet Company. There being some question whether Coker had theretofore procured assignments from the bank, he dismissed the proceeding, took a non-suit, and paid the costs on November 18, 1947. Thereupon he filed a new suit in replevin against defendants, Martin, Rogers and the Dees Chevrolet Company. In the meantime it had been discovered that Martin had executed a bill of sale to Rogers, though both Martin and Rogers maintained claims to the property and refused to deliver same. All said defendants executed forthcoming bond with sureties and procured possession.
The record shows that at the time of the second seizure, despite efforts of Martin to make the account current, it was in default. The chattel mortgage authorized the mortgagee upon default to take possession of the property, and after notice, to sell the same. Proceeds of the sale were to be applied "first to the payment of all costs of said sale, including a reasonable attorney's fee; second, to the payment of the amount due upon said note, and the interest thereon; and third, if any surplus remains, the same shall be paid over to the mortgagor." The note provided for acceleration of the entire unpaid balance.
There were several motions and demurrers filed by the defendants and error is predicated upon the court's action in overruling same. They will be later discussed. The Court granted a peremptory instruction to the jury to find for the plaintiff, appellee.
The Court granted the following instruction for the plaintiff:
"The Court instructs the jury for the plaintiff that the form of your verdict should be: `We, the jury, find for the plaintiff and fix the value of the property as follows: One 1944 used Mack Tractor (New White Motor No. 140 A 20364) (Formerly bearing Motor No. 120-106 50), Chassis No. EHT-1S2430, at $ ____ and One 1944 Kingham Refrigerated Van Trailer, Model R-30, Serial No. 15685, at $ ____.'" The verdict of the jury followed the form there suggested and found the value of the two units to be $4,000.00. The judgment stated:
"It is therefore considered and so ordered by the Court that said plaintiff, Perry Coker, do have and recover of and from said defendants, James C. Martin and/or Ward C. Rogers and/or Dees Chevrolet Company, Inc., the possession of said above described personal property, if to be had, or in lieu thereof, if not to be had, that the said plaintiff do have and recover of and from the said defendants, James C. Martin, Ward C. Rogers, and Dees Chevrolet Company, Inc., and Roy Rosalis, Armindo O. Soares, and Elmer Williams, sureties, on said defendants forthcoming bond filed in this cause, the said sum of Four Thousand No/100 Dollars ($4,000.00), the value of said above described personal property, as fixed by the verdict of the jury in this cause, together with legal interest on said sum from this date, and all costs in this behalf expended, which costs to be taxed, for all of which let proper process issue."
There are sixteen separate assignments of error. Most of these may be summarily disposed of.
The first assignment is the Court's refusal to quash the writ on the grounds (1) the property was in custodia legis, (2) the defendants must be parties in possession, (3) the defendants may not be designated as joint and several by the symbol "and/or" and (4) there was no precedent demand. (Hn 1) The property was not in custoida legis at the time of the second seizure, the first writ having been dismissed and non-suit taken and costs paid. (Hn 2) The giving of bond by all the defendants admitted possession. (Hn 3) The defendants were not improperly joined or designated as such. (Hn 4) Demand, even if necessary, had been made by filing the first suit and in the subsequent negotiations. We do not therefore take into account the provision of the mortgage that said property may be sold without taking possession, and the provision of the note waiving presentment and demand. The defendants stood alone on the pleadings to support their motion.
The next five assignments attack the Court's orders overruling the several demurrers. We do not think it would be helpful to elaborate these grounds. Suffice it to state that the declaration stated a valid cause of action, especially in view of the fact that (Hn 5) the affidavit is part of the record and can be noticed upon demurrer. Newell v. Newell, 34 Miss. 385.
(Hn 6) The seventh assignment concerns the overruling of plaintiff's motion to quash certain interrogatories addressed to the non-resident plaintiff and to his attorneys. There was no error here. Without considering the right to direct interrogatories to the attorneys for the non-resident plaintiff under Code 1942, Section 1712, it is enough to state that the interrogatories were filed January 16, 1948, and the trial was had on January 23rd following, at which time the plaintiff was in court and testified in the cause. Motion to suppress was not filed until after plaintiff so appeared.
(Hn 7) The eighth assignment relates to the alleged refusal by the court to allow defendants to show a consistent practice by the bank to accept payments remitted by postal money order and by telegraph. In view of the fact that defendants were in default at the time of the seizure, this assignment is without merit.
The following six assignments are directed to the refusal of a directed verdict for the defendants, the granting of a peremptory instruction for plaintiff and the contention that the verdict was contrary to the overwhelming weight of the evidence. These assignments raise points already disposed of.
(Hn 8) In the fifteenth assignment the appellants attain secure ground. The contention is made that the plaintiff was at most entitled to a judgment in the alternative for a return of the property or the value of his limited interest therein measured by the balance due with interest and damages. Code 1942, Section 2860, supports this contention. The terms of the mortgage and our decisions lend additional weight thereto.
The exact amount of the balance due appellee is not satisfactorily shown, owing to the necessity for computing interest or damages if any. (Hn 9) The defendants are not privileged to claim an acquittance upon the redelivery of property if it has deteriorated by use pending conclusion of the litigation. Moody v. Citizens' Sav. Investment Co., 135 Miss. 403, 99 So. 817. On the other hand, the plaintiff is without right to fix the value of the property as liquidated damages for default without regard to the extent of his interest therein.
We affirm the Court's action in awarding judgment for the plaintiff upon his right of possession, but must reverse and remand the cause for a proper determination, under appropriate instructions of the several elements which go to make up the extent of the interest of the plaintiff, who must deal with the property as security therefor. Bates v. Snider, 59 Miss. 497; Bond v. Griffin, 74 Miss. 599, 22 So. 187; Hill v. Petty, 111 Miss. 665, 71 So. 910; Evans v. Junius Hart Piano House, 140 Miss. 467, 106 So. 9; Tufts v. Stone, 70 Miss. 54, 11 So. 792; Commercial Credit Co. v. Spence, 185 Miss. 293, 184 So. 439; Fanning v. C.I.T. Corp., 187 Miss. 45, 46, 192 So. 41. Compare Dederick v. Wolfe, 68 Miss. 500, 9 So. 350, 24 Am. St. Rep. 283; Ross-Meehan Brake etc. Co. v. Pascagoula Ice Co., 72 Miss. 608, 18 So. 364; Bankston v. Holl, 134 Miss. 288, 98 So. 689, 37 A.L.R. 88; Ellis-Jones Drug Co. v. Coker, 156 Miss. 775, 125 So. 826, 127 So. 283.
Judgment accordingly.