Opinion
No. 38369.
May 5, 1952.
1. Contracts — conditional sales, title retained — unpaid purchase money.
The seller who has reserved title to the personalty for the unpaid purchase money must show when seeking to enforce his contract, that the purchase money has not been paid, and the amount thereof, but it is sufficient to show this by the testimony of the debtor, especially if there is no evidence to the contrary.
2. Attachments in chancery — damages for negligent collision of automobile — priority among claimants.
Where the automobile of a nonresident has been attached in chancery to answer to the damages caused by a collision, and the holder of the retained title to the automobile and the person who at the direction of officers towed the automobile from the highway and kept it in storage intervened, the order of priority in the attachment proceedings will be, first, the claim for the towage and storage; second, the amount of the unpaid purchase price with lawful interest secured as aforesaid, and third, the damages awarded to the complainant in attachment.
Headnotes as approved by Lee, J.
APPEAL from the chancery court of Yalobusha County; HERBERT HOLMES, Chancellor.
John Horan, for appellant.
I. The proof in this record shows conclusively that the garageman, Roy Paris, was asked by the highway cop to take the automobile from the place of the accident, and that the garageman did not know who the owner of the car was; and that the garageman had no contract or agreement with the owner, the buyer or the seller or assignee of the automobile to either tow in the car or store it in his garage. In such case he could have no lien against the automobile in question. 61 C.J.S., Sec. 748, p. 898; Orr v. Jackson Jitney Car Co., 115 Miss. 140, 75 So. 945; Rickenberg v. Capital Garage, 68 Utah 30, 249 P. 121, 50 A.L.R. 1303; White v. Texas Motor Car Supply Co., 203 S.W. 441; Berry, on Automobiles, 4th Ed., Sec. 1455; Cache Auto Co. v. Central Garage Co., 63 Utah 10, 30 A.L.R. 1217, 221 P. 862; Lewis v. Best-By-Test Garage, 200 Iowa 1051, 205 N.W. 938; Rehn v. Viall, 185 Ill. App. 425; Pollard v. Borneman, 47 S.D. 622, 36 A.L.R. 954, 201 N.W. 525; Fishback v. Foster, 23 Ariz. 206, 202 P. 806.
II. The proof in this case conclusively shows and the complainant below admits that the only claim, lien or interest he had in the automobile in question grew out of the damage he sustained as result of the accident between his car and the car in question. In such case he had no prior lien against the automobile and was not entitled to a first lien on the automobile to satisfy his claim for damages to his automobile. Hollis Ray v. Isbell, 124 Miss. 799, 87 So. 273; Sec. 1021, 2709 Code 1942; Watkins v. Duval, 69 Miss. 364, 13 So. 727; Third Nat. Bank v. Reeves Grocery Co., 113 Miss. 35, 73 So. 866; Trice v. Walker, 71 Miss. 968, 15 S. 787; American Hoist Derrick Co., et al. v. Lynn, 167 Miss. 93, 148 So. 351.
III. The appellants were assignees of a conditional sales contract, in which the title of the automobile in question was retained in the seller or its assignee until its purchase price is paid. There was still due on the purchase price the sum of $593.80. In such case a garageman in the absence of a statute and agreement between him and the owners had no prior lien against the automobile for towing and storage charges; nor did the complainant hold a prior lien against the said automobile to satisfy any judgment he may recover for damages to his automobile as result of a collision with the automobile in question. It is the contention of the appellants that they are entitled to recover in this litigation on their retained title contract. United States Fidelity Guaranty Co., et al. v. Northwest Engineering Co., 146 Miss. 476, 112 So. 580, 57 A.L.R. 530; Richton Overland Co. v. McCormick Motor Car Co., 148 Miss. 616, 114 So. 387; United States Motor Truck Co. v. Southern Securities Co., 131 Miss. 664, 95 So. 639; W.F. Zimmerman Lbr. Co. v. Elder, 29 So. 466; Young v. Salley, 83 Miss. 362, 35 So. 571; Burkhalter v. Mitchell McLendon, 107 Miss. 92, 64 So. 967.
Kermit R. Cofer, for appellee, T.W. Clanton.
I. It is appellee's position that, according to the procedure herein involved, appellee Paris, though not entitled under the law to a lien for towing and storage, was entitled to a money decree against Tillman for these services, and, in an attachment in chancery, he was entitled to share in the proceeds of the sale of the only property of Otis Tillman in Mississippi, as far as this appellee knows or suspects.
There seems to be no controversy that he went and towed the car to his garage from the spot where it had finally come to rest after the collision, doing so at the instance of the patrolman, and has had it ever since, nor is there any proof that his charge was unreasonable. Appellee Clanton thinks that appellee Paris is entitled to recover and to obtain his satisfaction before Clanton, from sale of the automobile.
It is the belief of appellee that this position is in keeping with the holding in Citizens State Bank of Marianna, Florida v. City of Jackson, et al., 188 Miss. 562, 195 So. 585, wherein it was held that the City of Jackson was entitled, from the proceeds of the sale of the attached property, to reimbursement for caring for the property (wild animals) pending the hearing.
It is here shown, though, that appellant has filed a supersedeas bond, but, despite this bond, has left the car with Mr. Paris, thereby incurring additional storage charges to which he will undoubtedly be entitled. Appellant should be taxed with this storage and be made to pay it. It would be inequitable for the amount to have to come from the sale proceeds, since this would in effect amount to appellee Clanton's having to pay it.
The authorities cited by appellant do not conflict with this view.
II. Nor is there any conflict between appellant's cited authorities and appellee's position relative to his right to subject this vehicle to his decree for damages, as set out hereinabove.
III. The authorities here cited are good, but the difficulty is that the proof in this record does not (1) establish the existence of a conditional sales contract; (2) nor any delinquency owing, if in fact there exists such a contract, nor (3) any allegation that appellant felt insecure.
Tommie W. Clanton, by means of an attachment in chancery, procured the seizure of a certain Plymouth automobile, owned by Otis Tillman, a nonresident of the state, but in the hands of Roy Paris, a resident of the state. The purpose was to subject the automobile to a lien for the payment of such damages as the court might award for Clanton's personal injuries and property damage, proximately resulting from the alleged negligence of Tillman in the operation of his automobile. Process was obtained by publication. Tillman's answer denied the material allegations of the bill. Paris interposed his claim for removing the automobile from the highway, after the wreck and for accrued storage. Winter Hirsch, Inc., filed their motion to intervene as a third party claimant to set up their claim of $593.80 under a retained title contract.
By agreement of all the parties, the several issues were tried together.
Clanton's proof showed that, as he was driving along the highway, he was negligently struck from behind by the Plymouth automobile, driven by a brother of Otis Tillman, but in which Otis was riding at the time. The court awarded damages in the sum of $1,500 for both property loss and personal injuries.
After the wreck, Roy Paris, at the direction of the Highway Patrolman, removed the Plymouth automobile from the highway and stored it in his garage. That night an attachment out of the circuit court was served on him. The officer did not take the car but left it in the garage. The claim of Paris for $7.50 towage and $0.50 a day storage was allowed by the Court.
No appeal is prosecuted by Otis Tillman as to either of the above awards.
Winter Hirsch, Inc., to establish its claim, called as a witness W.I. Stone, attorney for Otis Tillman, and the witness stated that Tillman owed it a balance of $593.80 and that the obligation still existed. However, he refused to answer as to the time when he received such information; and on motion of Clanton's counsel, the evidence was excluded. Stone then said: "Representing my client I know from him that his obligation is good and valid * * *. Well, I agree for my client that he — that it is a valid obligation". Although counsel has the authority to bind his client by admissions in open court, the trial judge observed that the proper method to prove the existence of title had not been used, and excluded the statement.
At any rate, at this juncture, Otis Tillman was called as a witness and he testified to the following effect: The car was his. The signatures to the bill of sale were his and his wife's and both of them actually signed it. Winter Hirsch, Inc., financed the balance of the purchase money and the amount due and unpaid was $600. He reported to the Finance Company on Saturday following the 20th of November, 1950, that the car had been attached. He had kept up the payments and was not delinquent.
Following this evidence, the court held that the title retention contract was competent and permitted its introduction.
At the conclusion of the evidence, the trial judge, in his oral opinion, stated that the explanation by Tillman was not satisfactory and that he did not know whether the claim was bona fide. The final decree dismissed the claim and Winter Hirsch, Inc., appeal.
Of course, (Hn 1) the seller, reserving title to goods for the unpaid purchase money, in replevin, must show that the purchase money has not been paid. Brunson v. Volunteer Carriage Co., 93 Miss. 793, 47 So. 377. And in the case of Evans v. Junius Hart Piano House, 140 Miss. 467, 106 So. 9, it was held that the seller, bringing replevin for a piano on a conditional contract, must show the amount, if any, due on the contract.
It is true that the claimant did not offer proof by a proper member of its organization that the indebtedness mentioned in its bill of sale or retained title contract was unpaid. But it showed by Tillman, its debtor, a party to the contract, that the contract was genuine, that the title to the automobile was in the claimant, and that the balance of $593.80 was unpaid. There was no evidence to the contrary. Consequently the court was in error in rejecting this claim.
(Hn 2) Paris moved the car off of the highway. The sheriff, under an attachment, seized it on the same day, and was bound to take care of it. He left it with Paris, who has kept and preserved it ever since, and manifestly is entitled to a first lien therefor. Thus the court was correct in so adjudging.
From which it follows that the decree of the lower court, as regards the claim of Paris, should be and is affirmed. As regards the claim of Winter Hirsch, Inc., the decree of the lower court is reversed, and a decree will be entered here in favor of said appellant in the sum of $593.80, with lawful interest, and a lien against the automobile second only to the lien of Paris. As regards the claim of Tommie Clanton, the decree of the lower court is affirmed but modified so as to subordinate his lien against the automobile to those of Paris and Winter Hirsch, Inc.
Affirmed in part; in part reversed and decree here and in part affirmed as modified.
Roberds, P.J., and Alexander, Holmes and Arrington, JJ., concur.