Securities Sales Co. v. Blackwell , 167 La. 667 ( 1928 )

This is a sequestration suit for the recovery of an automobile, sold and delivered in the state of Mississippi under a conditional sale agreement, and resold several times in this state, and finally purchased by defendant from the Slidell Motor Company of the parish of St. Tammany.

The demand of plaintiff was dismissed in the district court, the writ of sequestration was dissolved, and the right to sue for damages for the illegal issuance of the writ was reserved to defendant.

On appeal, the judgment of the lower court was reversed by the Court of Appeal for the First Circuit, the writ of sequestration was maintained, and the Securities Sales Company, the plaintiff, was declared the owner of the truck, which was ordered delivered to it. Judgment was rendered also in favor of defendant against his warrantor, C.H. Larrabee, successor of the Slidell Motor Company, in the sum of $183.10, the amount paid by defendant on the truck up to the date of the seizure by plaintiff. This judgment is now before us for review, on application of defendant.

On March 9, 1926, the Poplarville Garage Company of Poplarville, Miss., entered into a conditional sale agreement with one Joseph Namie for the purchase of a Ford truck at the price of $468. Namie paid the garage company $175 in cash, and agreed to pay the balance of $293 in 10 monthly installments of $29.30 each, for which he executed his promissory note.

It was agreed that the title to the property should remain in the vendor until all of the installments were fully paid, and, if any one of the installments should remain unpaid for more than three days after maturity, then all of the remaining installments might, at the option of the holder, be declared due at once without any notice.

The truck was delivered to Namie in Poplarville, Miss., on the day of the sale, and on the same date, March 9, 1926, the conditional sale agreement was assigned to the plaintiff, the Securities Sales Company of New Orleans, La., for a valuable consideration.

After payment to the Securities Sales Company of 5 installments, Namie defaulted as to the payment of the remaining 5 installments, and, thereupon, the Securities Sales Company sequestered the truck which, at the time, was in the possession of Rob Blackwell, the defendant.

On July 26, 1926, defendant, without knowledge of adverse claims, purchased the truck from the Slidell Motor Company for the price of $197, and had paid the sum of $183.10 at the date of the seizure, April 25, 1927, leaving unpaid the last chattel mortgage note of $13.90 on the truck.

It is admitted that the truck was brought from Mississippi into this state by Namie, and sold here by him, and was transferred within the state several times before it was purchased by defendant from the Slidell Motor Company.

Namie acquired no title to the truck under the conditional sale agreement made in the state of Mississippi, and, consequently, no title vested in subsequent vendees. Overland Texarkana Co. v. Bickley, 152 La. 622, 94 So. 138.

The sale of the truck by Namie to the first vendee in this state was a fraudulent conversion of the property by the vendor, and may be assimilated to the sale of a thing stolen.

Defendant, in good faith, purchased the truck from the Slidell Motor Company, "a person in the habit of selling such things." Although defendant did not acquire the ownership of the truck by this sale, he did acquire the right to have the purchase price paid by him returned before the plaintiff, the owner, could obtain restitution of the truck. The law of the case is made plain by the provisions contained in article 3507 of the Civil Code, which declares: "If, however, the possessor of a thing stolen or lost bought it at public auction or from a person in the habit of selling such things, the owner of the thing can not obtain restitution of it, without returning to the purchaser the price it cost him."

It is therefore ordered that the judgment of the Court of Appeal for the First Circuit be amended so as to provide that the truck be restored to plaintiff upon the return of the price it cost defendant, to wit, the sum of $183.10, and that defendant be permitted to detain the truck in his possession until this sum is paid to him by plaintiff.

It is now ordered that the judgment of the Court of Appeal for the First Circuit, as amended, be affirmed.