Brunson v. Volunteer Carriage Co. , 93 Miss. 793 ( 1908 )

Whitfield, C. J.,

delivered the opinion of the court.

The plaintiff had the burden of showing the right of possession to the identical property in question, and we think it failed to meet this requirement. It seems clear that the-note for $135.60 was not given for the purchase money of this particular-buggy; nor is there any satisfactory evidence that the Anderson vehicle rubber-tired runabout mentioned in the note was the. buggy involved in this suit. The note was given for different vehicles from the one here sued for, so far as the testimony discloses.

The order that was introduced does not describe the buggy as the one in the affidavit is described, and in the writ. It may bo conceded that the vehicle sued for was sold for $83, and that it was the one described as “No. 379;” but that falls far short of identifying the buggy in question as that buggy. The purchase price of the vehicle in the order is made payable at the Southern .Bank; but no relation is shown between the order dated May 4, 1907, and the note dated December 15, 1907. The note is pay able for a different amount and at the First National Bank of Meridian, and was given for a buggy and a passenger wagon, both presumably sold on the date of the note — December 15, 1907. The order provides for a note payable four months from May 4, 1907, for the sum of $83, payable to the Southern Bank, and due four months from May 4, 19Q7. The note for $135.60 was doubtless introduced to show that the Hall Livery Company owed the Volunteer Carriage Company that amount; but, according to the .face of the note, it was given for different vehicles than the buggy in question. It was incumbent on the plaintiff to show that the buggy in question has not been paid for.

There is also a failure to show that the Volunteer Carriage 'Company sold this buggy in question to the Hall Livery Company. The plaintiff attempted to show it by Culpepper, but wholly failed. It is impossible, on this sort of proof, to affirm this decision.

Reversed cmd remanded.