Rodgers v. Whitehead , 127 Miss. 21 ( 1921 )

Ethridge, J.,

delivered the opinion of the court.

In May, 1920, the appellees and one W. W. Hickman entered into a contract by which Hickman sold a sawmill outfit to the appellees. The contract in full reads as follows:

“State of Mississippi, Winston County.

“This contract, made and entered by and between Dr. W. W. Hickman, party of the first part, and W. R. Whitehead and Joe Sullivan, parties of the second part, witnesseth: That whereas the party of the first part has this day sold to parties of the second part the following described property, to-wit: One sawmill engine and boiler and appurtenances thereto belonging, known as the R. M. Wilson sawmill. The purchase price of said mill being the sum of seventeen hundred dollars which is to be paid as follows:

“The parties of the second part agree and promise to deliver ten thousand feet of No. 2 and better lumber to party of the first part on the first and fifteenth of each month at Perry-Frasier tramroad for and at the sum of twenty-two dollars per thousand, or if delivered at Noxa-pater, Miss., for the sum of twenty-five dollars per thousand feet; and parties of the second part agree and bind themselves to begin on June 1,1920, to delivering said lumber and agree to deliver forty thousand feet by August 1, 1920.

“Parties of the second part agree to deliver sufficient lumber to finish paying the sum of eight hundred and twenty dollars at the market price locally.

“It is further agreed that said lumber is to be delivered subject to the check of the party whom the party of the first part may sell.

“It is further agreed and understood that the title to said sawmill and appurtenances thereto belonging shall remain in the party of the firsc part and in case the parties of the second part should fail to meet any of the foregoing conditions and agreements the party of the first part can take charge of said mill and appurtenances thereto belonging and dispose of same for the balance due on the purchase price of said mill.

“It is further agreed and understood that the parties of the second part can pay the balance due on said machinery of eight hundred and twenty dollars on August 1, 1920, provided they have met all payments due np to said date.

“It is further agreed and understood that said amount of seventeen hundred dollars, the purchase price of said machinery, is to bear six per cent interest from date until each of said payments are paid in full.

“It is further agreed that the party of the first part is to have the use of said machinery free of charge to cut up what logs the said party of the first part now has on the mill yard.

“Witness our hands, this the —— day of May, 1920.

“W. H. Hickman,

“W. W. Whitehead,

“Joe Sullivan.

“Parties of the Second Part.-

“Witnesses:

“No aclmoAvledgment before an officer needed.

“Your other contract is not full enough.

“Brantley.

“Nov. 22, 1920. I hereby transfer this paper to S. S. Bodgers without recourse for a valuable consideration.

“W. W. Hickman.”

Three hundred dollars was paid to Hickman on this contract, and on November 22d it was assigned to the appellant without recourse. Thereafter the appellant made demand upon the appellees for the balance due. The money was not paid, but the appellees contended that the appellant agreed to take the property back in satisfaction of the indebtedness unpaid, and that this was agreed to, but that the appellant did not have the contract with him, and it was agreed that they would meet at Noxapater the following Saturday, when the appellant would redeliver the contract to the appellees, and that when they met in accordance with the agreement that the appellant refused to take the property in full satisfaction of the debt, unless the appellees would permit him to take certain parts of the machinery which had been purchased by them subsequent to the purchase from Hickman of the property described in the contract. There is a dispute between the appellant and the appellees as to what took place at each of the places where the conversations claimed by the ap-pellees took place. Subsequent to this conversation the appellant had a writ issued out of the circuit court for ■the seizure and sale of said property to satisfy an indebtedness claimed under the said contract of fourteen hundred dollars, and the sheriff seized the property and sold the same under said writ, whereat the appellant became the purchaser at and for the sum of three hundred dollars. Thereafter the appellant brought suit on the contract for the balance due.

The defendants filed a plea of nonindebtedness, and gave notice under the general issue that they would prove the agreement above indicated, that the property was to be taken in full satisfaction of all liability on the contract. The testimony for the plaintiff was that the agreement to retake the property for the debt embraced the property as it was then situated, including the fixtures put to the property by the defendants after the purchase under the contract from Hickman; while the defendants contended that the agreement was that the plaintiff would take the property sold under the contract in full satisfaction. There was a peremptory instruction for the defendants, and judgment entered thereon, from which this appeal is prosecuted.

It is contended here that the clause in the contract, “It is further agreed and understood that the title to said sawmill and appurtenances thereto belonging shall remain in the party of the first part, and in case the parties of the second part shall fail to meet any of the foregoing conditions and agreements, the party of the first part can take charge of said mill and appurtenances thereto belonging and dispose of same for the balance due on the purchase price of said mill,” constitutes a contract on the part of Hickman and his assignee, the plaintiff, to take the property in full satisfaction of the debt in case the purchase price or any part thereof was not paid. We do not think tbis contention can be maintained. In our opinion the title was reserved as security for the payment of the debt, and was not a contract to take it in the satisfaction of the debt. If the contract was to be taken as a whole, we think it manifest that Hickman sold absolutely the property, reserving title as security, and this is manifest in the concluding paragraphs of the contract. We think this conclusion is supported by decisions of this state. Burnley v. Tufts, 66 Miss. 48, 5 So. 627, 14 Am. St. Rep. 540; Dederick v. Wolfe, 68 Miss. 500, 9 So. 350, 24 Am. St. Rep. 283; Ross-Meehan Brake Shoe Foundry Co. v. Pascagoula Ice Co., 72 Miss. 608, 18 So. 364.

The judgment will therefore be reversed, and the cause remanded.

Reversed and remanded.