[21] The parties in this case have placed an almost impossible burden upon the trial court and this court by an oversimplified stipulation of the facts.
[22] They stipulate that:
"* * * At some time prior to March 5, 1961, the trailer was redelivered by him *Page 443 (Mauldin) to Truck Trailer Sales, Inc. * * *." (emphasis mine)
[23] They further stipulate that:
"At the time of the repossession of the trailer by Truck Trailer Sales, Inc., from C.H. Mauldin, the paper title was assigned to Truck Trailer Sales, Inc. * * *" (By Mauldin) (emphasis mine)
[24] What right did Truck Trailer Sales have to repossess the trailer? The stipulation does not say and I know of none absent Kroeger's consent, unless Truck and Trailer Sales was secondarily liable on the note. The stipulation does not show whether Kroeger did, or did not know, that Truck and Trailer Sales repossessed the trailer; but this would make no difference if Truck Trailer Sales had Kroeger's permission, or a right to repossess it.
[25] The Mauldin note was made payable to "the order of Truck Trailer Sales, Inc.," and was endorsed "Truck and Trailer Sales, Inc., and immediately thereunder is the name "L.F. Slaggett". Under the endorsement is the following: "Karl Kroeger Finance Co." (Typed) Karl Kroeger (Signature)."
[26] The briefs do not mention the endorsement on the note and it is not contended that the character of the endorsement has anything to do with a proper decision of this case. The stipulation does not disclose whether Truck and Trailer Sales was secondarily liable on the Mauldin note.
[27] The briefs do not discuss the question of who had the burden of supplying answers to these vital questions by proof.
[28] In reference to the manner in which the trailer came back into possession of Truck and Trailer Sales the parties have used the following words to describe this transfer: "Redelivered" by Mauldin, and "Repossession" by Truck and Trailer Sales. The choice of these words must import some legal significance.
[29] In 76 C.J.S. pp. 176 and 177, Redeliver and Redelivery, are said to be defined, as follows:
"Redeliver. To deliver back another's property."
"Redelivery. A yielding and delivering back of a thing; a turning back to the owner."
[30] In 77 C.J.S. p. 259, Repossess is said to be defined, as follows:
"Repossess. To possess again; to regain or recover possession of. The term has been held synonymous with `foreclose' see 36 C.J.S. p. 1246 note 24, and has been distinguished from `dispossess' see 27 C.J.S. p. 351 note 2.1."
[31] In 36A C.J.S. p. 1091, under the word "Foreclose", we find the following statement:
"In particular connections the term [foreclose] has been held synonymous with `repossess,' and has been distinguished from `dispossess' see the C.J.S. definition of that term."
[32] From the parties choice of the foregoing words it appears that Mauldin redelivered or turned the trailer back "to the owner", or person rightfully entitled thereto, and that the trailer was repossessed for the purpose of foreclosing the mortgage. Truck Trailer Sales surely would not repossess (as the term "repossession" is used in the stipulation) or receive the trailer from Mauldin without the prior consent of Kroeger Finance Company, or unless there was a secondary liability on the part of Truck and Trailer Sales for the payment of the note to Kroeger Finance Company.
[33] For the foregoing reasons, and other reasons expressed in the majority opinion, I concur in the result reached by the majority.
[34] I am authorized to state that Williams and Hodges, JJ. concur in the views herein expressed. *Page 444