Opinion
No. 41383.
April 25, 1960.
1. Frauds, statute of — agreement for sale of store equipment not within statute.
Where jury was warranted in believing that equipment was delivered to the buyer at time of his purchase of lot and store building and that husband of the seller delivered such property to the buyer pursuant to his statement in the presence of his wife when he was trying to sell the property, that "everything went with the store," agreement was not within the statute of frauds. Sec. 269, Code 1942.
2. Replevin — wife estopped from maintaining action to replevin wife's equipment sold by husband in wife's presence along with husband's store building.
In replevin by wife of seller to recover store equipment, where jury could believe that seller delivered the equipment to the buyer pursuant to a statement in the presence of the wife when he was trying to sell the property and that "everything went with the store," and wife did not object, wife was estopped from maintaining the suit for equipment at a later date.
3. Replevin — evidence — verdict for defendant-buyer of store equipment supported by the evidence.
In suit to replevin equipment sold with the store by husband of the owner, verdict of the jury for the buyer was supported by the evidence.
Headnotes as approved by McGehee, C.J.
APPEAL from the Circuit Court of Washington County; ARTHUR B. CLARK, JR., Judge.
Joseph E. Wroten, Greenville, for appellant.
Estoppel is unavailable to a party who has neglected to plead it, and a court cannot consider or take notice of an estoppel unless it is pleaded. Not only is the court not bound to notice an unpleaded estoppel, but, moreover, a party by not pleading estoppel waives his right to its benefit. Chaney v. Williams, 231 Miss. 196, 94 So.2d 922; Darby Lumber Co. v. Hill, 209 Miss. 816, 48 So.2d 484; Hartsfield v. Lafayette County, 185 Miss. 564, 189 So. 177; 19 Am. Jur., Sec. 179 p. 832 et seq.
Horace L. Meredith, Jr., Greenville, for appellee.
I. A husband may be the agent of his wife for the sale, transfer or assignment of her personal property. Mead Co. v. Doerfler, 148 Neb. 75, 26 N.W.2d 393; Mounts v. Boardman Co., 79 Okla. 90, 191 P. 362; Stegemen v. Vandeventer, 57 Cal.App. 753, 135 P.2d 186; 26 Am. Jur., Secs. 227, 228, 233 pp. 838, 843; 2 C.J.S., Secs. 14, 23, 23(c) pp. 1040, 1046, 1048; A.L.I. Restatement of the Law (Agency), Sec. 21 p. 63.
II. One who knowingly permits another to sell his property to a person for value without notice and conceals his ownership, is estopped to assert title to said property as against the purchaser. Adoniram Dann v. Charlotte Cudney, 13 Mich. 239, 87 Am. Dec. 755; Holden v. Bloxum, 35 Miss. 381; Kyle v. Huddlestun, 80 W. Va. 439, 92 S.E. 679; Levy v. Gray, 56 Miss. 318; Turnipseed v. Hudson, 50 Miss. 429; Upshaw v. Gibson, 53 Miss. 341; 19 Am. Jur., Secs. 2, 3, 33 pp. 600, 601, 633.
In 1938 and again in 1940 Walter Rice, the husband of the appellant, Janie Rice, was adjudged insane and sent to the Mississippi State Hospital at Whitfield. After returning to his home at Greenville his wife, the appellant, purchased a vacant lot and later built a store building thereon, taking the title in the name of her husband, Walter Rice.
In 1946 she purchased certain equipment for the store building at the purchase price of $1,244.10, and she later paid for the same in monthly installments. On the eleventh day of February, 1946, she had the bill of sale for this personal property duly recorded in the office of the chancery clerk.
Some time thereafter she accompanied her husband to the place of business of the appellee, T.Y. Quong, at Glen Allen for the purpose of selling to him the lot and store building at Greenville. The appellee testified that Walter Rice, in whose name the real estate was vested, told the appellee that everything in the store building went with it. The appellee had been in the place of business at Greenville and saw both Janie Rice and her husband, Walter Rice, conducting the business in the store. The appellee testified that Walter Rice made the statement to him in the presence of the appellant, Janie Rice, that everything in the store went with it (the sale), except an adding machine and a table which belonged to the appellant individually. The appellee delivered this adding machine and table to the appellant and went into possession of the store building and the equipment and has continued in possession thereof at all times since the purchase.
The appellant contended that the appellee paid her husband $500 in cash at the time he bought the store building and that he has paid the remainder of the $3,500 purchase price in monthly installments; that he agreed with her at the time he purchased the lot and store building that when he finished paying Walter that he would then pay her $900 or $1,000 for the equipment. The appellee denies that there was any agreement to this effect or that he agreed to pay her anything at any time for the equipment in the building, but that he has understood at all times that he got the equipment in his purchase of the lot and store building.
On the trial of this replevin suit the issue of fact hereinbefore mentioned was submitted to the jury in the county court and the jury resolved the issue in favor of the appellee. The judgment of the county court was thereafter affirmed by the circuit court.
Section 268, Code of 1942, provided, among other things, that: "A contract for the sale of any personal property, * * *, for the price of $50 or upward, shall not be allowed to be good and valid unless the buyer shall receive part of the personal property, * * *, or shall actually pay or secure the purchase-money, or part thereof, or unless some note or memorandum, in writing, of the bargain be made and signed by the party to be charged by such contract, * * *."
(Hn 1) In the instant case the jury was warranted in believing, even if it had been disputed, that the equipment in question was delivered to the appellee at the time of his purchase of the lot and store building, and on conflicting evidence the jury had the right to believe that Walter Rice delivered such property to the appellee pursuant to his statement in the presence of the appellant when he was trying to sell the property to the appellee that everything went with the store, or words to that effect. (Hn 2) Moreover, the appellant is estopped from maintaining this replevin suit for the equipment at this late date. The only plea filed in the case was that of not guilty — the only plea provided by law to be filed in answer to a replevin suit. (Hn 3) Without regard to whether an estoppel should have been pleaded or not, we think that the verdict of the jury was amply supported by the evidence and that the judgment of the court should be affirmed.
Affirmed.
Hall, Lee, Ethridge and Gillespie, JJ., concur.