* Corpus Juris-Cyc. References: Appeal and Error, 4CJ, p. 857, n. 2; p. 858, n. 3; Replevin, 34Cyc, p. 1404, n. 67, 68, 73; p. 1405, n. 78; Sales, 35Cyc, p. 673, n. 59; p. 701, n. 36; Trial, 38Cyc, p. 1512, n. 25. Demand as prerequisite to replevin property conditionally sold, see 23 R.C.L. 888; 4 R.C.L. Supp. 1510; 5 R.C.L. Supp. 1249. Findings of fact on conflicting evidence not generally disturbed on appeal, see 2 R.C.L. 194; 1 R.C.L. Supp. 433; 4 R.C.L. Supp. 90; 5 R.C.L. Supp. 79; 6 R.C.L. Supp. 73. The appellant, Sackler, operated a retail furniture store at Hattiesburg, Miss., and sold certain furniture on the installment plan, on two separate occasions, to the appellee, Slade. The payments were to be made twice a month, and appear to have amounted to seven dollars for two weeks, or fourteen dollars a month. The appellee failed to make payments punctually; and it was agreed in the contract between the appellant and the appellee that the title to this property should be reserved in favor of the seller until the full purchase price of the property had been made, and, in the event of default of payment of any part of the purchase price, that such default would entitle the seller to take immediate possession of the property without process of law.
The appellant contends that the appellee left Hattiesburg and went to Sumrall, taking the furniture with him — without appellant's consent — and that his agent located this furniture in Sumrall in a house which had the appearance of being abandoned. The appellee worked in the town of Sumrall at the time the furniture was taken, and was living in the house where the furniture was found; but, at the time the agent and the constable found and seized same, neither the appellee nor his wife was at home. The property was seized under a writ of replevin; the appellant having given bond as provided by law. There was no demand made upon the appellee for the furniture, but a copy of the writ of replevin was left on the mantelpiece in the house, and, upon the return of appellee that night, he found the furniture gone, and his effects scattered over the room. *Page 581
Appellee defended the replevin suit, and testified that he secured the consent of the appellant to move the furniture from Hattiesburg to Sumrall; that a few days prior to the seizure of the furniture he had paid the appellant ten dollars on account; and that it was agreed between them that it would be all right for him to pay ten dollars more two weeks from that date, or on the next pay day of the appellee. Appellee filed a claim for damages in both the justice court and the circuit court, testifying to the amount and extent of his damages, which consisted of attorney's fees, lost time, and expense of conveyance to attend the several trials in the case. The jury found for the defendant, the appellee, and awarded him damages.
We think, the jury having found for the defendant, and having accepted his version of the transaction as being true, a demand was necessary before replevin would lie; and, not having made the demand, the replevin suit was wrongfully instituted. The instructions given the jury by the court were favorable to the appellant, and we find no reversible error in the judgment. The judgment therefore will be affirmed.
Affirmed.
ON SUGGESTION OF ERROR. It is contended on suggestion of error that the opinion heretofore rendered is in conflict with Dearing v. Ford, 13 Smedes M. 269.
We failed, in the former opinion, to emphasize the clause in the contract in the present case which distinguishes it from the Dearing case. The contract is one for the conditional sale of furniture, and, among other things, contains the following:
"And should I fail to meet the payments as stipulated above, or any of them, or any part thereof, that act shall authorize the said Sackler Furniture Company, or assigns, to repossess said property without process of law, and the payments I may have made up to such time shall *Page 582 go as rental on said property for the time I may have had possession and use of the same."
It will be seen from this clause of the contract that, if there was a failure to meet the payments when due, the appellant was authorized to repossess the property, and apply all payments made on it as rent for the use of it. The evidence for the appellee showed that, while he was in arrears with the installments, he applied to the appellant for additional time, and offered to pay ten dollars, which was accepted, on an agreement not to take any action until the next pay day of the appellee, which was two weeks from the date of said payment; that, after accepting the said ten dollars under such circumstances, and without giving any notice or making any demand of the appellee, or giving him any chance to adjust himself to the changed notion of the appellant, a writ of replevin was sued out, and the property seized in the absence of the appellee.
It is competent, of course, for a party to waive a right to possession, and if the appellant had taken the property, and applied the payments as they stood at that time as rent, without the agreement, he would have received ten dollars less than he did receive. In other words, in agreeing to accept ten dollars and defer action for two weeks, at least, the appellant gained ten dollars, which he would not have had, had he repossessed the property, and applied the payments as stipulated in the contract. Conceding that he had the right to take the property at the time the ten dollars was paid, and that he could do so without making a demand, we think his act in agreeing to and accepting the ten dollar payment, which he could apply as additional rent, deprived him of the right to act within the two weeks subsequent to the payment of the ten dollars; in other words, that he had no right to repossess during that period of time.
It is argued that the appellant was not bound by the agreement, because the appellee already owed him an amount in excess of the ten dollars paid. That would *Page 583 be true, if the agreement was to give up the debt, or take less than due under the debt in payment thereof, without delivering to the appellee the evidence of the debt; but the consideration here is different. Appellant's right, as it existed prior to the payment and the making of the agreement, was to repossess the property, and apply the money then received as rent. The property, conditionally sold, being the property of the seller, the agreement to accept the ten dollars, and the payment of the ten dollars by the appellee, was a waiver of appellant's right to repossess, made upon sufficient consideration and reasons.
It follows that appellant had no right to possession at the time the writ was sued out, and consequently the suggestion of error is overruled.
Overruled.