ARMSTRONG v. SHELL

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Docket Number

No. 36147.

Attorney(S)

Engle, Laub, Adams Forman, of Natchez, for appellant. In a suit of replevin the only plea available to defendant is one of "not guilty." Porter Hardware Co. v. Peacock, 129 Miss. 129, 91 So. 856; Code of 1942, Sec. 2859. The motion to exclude all the evidence offered as to what transpired in Franklin County in the home of the Shells between Mr. Berryhill and the defendant on Sunday and all evidence of any contract made on Sunday, should have been sustained because it was contrary to the laws of the State of Mississippi. Kountz v. Price, 40 Miss. 341; Stamps v. Frost, 174 Miss. 325, 164 So. 584; Smith et al. v. Mills, 199 Miss. 367, 24 So.2d 864; Code of 1942, Sec. 2368 (Code of 1930, Sec. 1131). The court erred in refusing the instruction asked for by the plaintiff that if the jury believed from a preponderance of evidence that Mr. Berryhill had only a limited authority from his employer, Judge Armstrong, to enter into month-to-month contracts, then they should return the following verdict, "We, the jury, find for the plaintiff." Sullivan v. Smith, 123 Miss. 157, 82 So. 191; Phillip Gruner Lumber Co. v. Algonquin Lumber Co. et al., 123 Miss. 157, 85 So. 191; AEtna Ins. Co. v. Singleton, 174 Miss. 556, 164 So. 13. Joseph E. Brown, of Natchez, for appellee. The appellant and appellee are in pari delicto. Stamps v. Frost, 174 Miss. 325, 164 So. 584. As to appellant's contention that appellee's notice of damages should have been stricken, we say that this notice was significant, if at all, as an aid to appellant in knowing the position being taken by appellee in the trial, and if the court erred in overruling the motion to strike, it cannot be conceived how this harmed appellant, nor does appellant undertake to so demonstrate. An apparent agent is a person who, whether or not authorized, reasonably appears to third persons, because of the manifestations of another, to be authorized to act as agent for such other. An apparent principal is the person for whom an apparent agent purports to act. The apparent agent may have authority which is co-extensive with his apparent authority; he may be authorized to act in other ways but not in the way as to which he has apparent authority; or he may not be authorized to act in any respect for the purported principal. If the authority and the apparent authority are coextensive, the liability of the principal resulting from conduct of the agent may be based upon either authority or apparent authority. Restatement of the Law, Agency, Comment a, Sec. 8.

Judges

Roberds, J., delivered the opinion of the court.

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ARMSTRONG v. SHELL.

1. SUNDAY.

The negotiation and conclusion of contract on Sunday rendered contract invalid (Code 1942, sec. 2368).

2. PLEADING. Sunday.

In replevin action against defendant who claimed right to possession under oral contract, alleged invalidity of contract as having been negotiated and concluded on Sunday could be invoked either by plea or objection to the evidence when offered (Code 1942, sec. 2368).

3. SUNDAY.

In replevin action against defendant who claimed right to possession under oral contract which plaintiff contended was invalid as having been negotiated and concluded on Sunday, plaintiff was not in pari delicto and hence could take advantage of of illegality of contract, since defendant and not plaintiff was trying to enforce the contract (Code 1942, sec. 2368).

Roberds, J., delivered the opinion of the court.

Appellant Armstrong, by a replevin proceeding, seized four mules, one wagon and two sets of harness in the possession of appellee Shell. Armstrong owned the property. Shell based his right to possession upon an oral contract he claims was previously made with Armstrong. It is admitted that this contract, if made, was begun, negotiated and entirely concluded on Sunday. That rendered the contract invalid and unenforceable. Section 2368, Code 1942; Miller v. Lynch, 38 Miss. 344; Kountz v. Price, 40 Miss. 341; Block v. McMurry, 56 Miss. 217, 31 Am. Rep. 357; Grapico Bottling Co. v. Emis, 140 Miss. 502, 106 So. 97, 44 A.L.R. 124; Stamps v. Frost, 174 Miss. 325, 164 So. 584; Thompson v. Weems, 5 Cir., 111 F.2d 566; Smith et al. v. Mills, 199 Miss. 367, 24 So.2d 864.

But appellee says that Armstrong did not properly invoke the illegality of the contract and that he is in pari delicto and cannot take advantage of it. One may invoke such invalidity either by plea or objection to the evidence of the contract when offered. Stamps v. Frost, supra. Armstrong objected to the evidence and the objection was overruled. Armstrong is not in pari delicto because he is not attempting to enforce the contract. He says no such contract was made. His right is that of an owner. Shell, not Armstrong, is grounding his right on the contract and trying to enforce it.

There are other grounds in the record entitling Armstrong to a judgment but the above is sufficient.

Reversed and judgment here for appellant.

ARMSTRONG v. SHELL.

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