BEFORE HAWKINS, P.J., ROBERTSON AND SULLIVAN, JJ.
HAWKINS, PRESIDING JUSTICE, FOR THE COURT:
The circuit court of Warren County awarded David Newell judgment against United States Fidelity & Guaranty Company (USF&G) based upon Newell's auto insurance policy with USF&G and USF&G's mistaken overpayment to Newell. USF&G has appealed. We find that Newell is not entitled to keep USF&G's mistaken overpayment as a matter of law. Accordingly, we reverse in part, affirmed in part, and render.
Plaintiff in this case is David G. Newell (Newell), a resident of Vicksburg, and the father of David Thomas Newell (Thomas). On November 18, 1983, Newell assisted Thomas, a minor, in the purchase of a new 1984 Chevrolet automobile from a dealer in Brookhaven. The sales price of the car was $6,640.85, and Newell made a down payment of $850.00, leaving $5,790.85 due on the car. Newell and Thomas executed an installment sale contract to the dealer, which was assigned to the General Motors Acceptance Corporation (GMAC). Newell purchased life and disability insurance for $806.20, paid a title charge of $5.00; and purchased an extended warranty for $330.00, which when added to the unpaid balance, totalled $6,932.05. All this was typed on the contract. In addition, blocked in spaces at the top of the contract showed the finance charge of $2,025.71, the amount financed as $6,932.05, the total payments to be $8,957.76, and the" Total Sale Price "as $9,807.76, including the down payment of $850.00.
Sale price . . . . . . . . . . . . . . $6,445.00 Sales tax . . . . . . . . . . . . . . 193,35 License & title . . . . . . . . . . . 7.50
Total Cash Price . . . . . . . . $6,645.85
Financing . . . . . . . . . . . . 2,025.71
Insurance . . . . . . . . . . . . 1,136.20
Total Time Price . . . . . . . . $9,807.76
Cash on Delivery . . . . . . . . 850.00
Title to the car was made in Newell's and Thomas's names.
Newell owned other motor vehicles and on November 23 the defendant U. S. Fidelity & Guaranty Company (USF&G) issued him a comprehensive liability and collision insurance policy on three vehicles, including the 1984 Chevrolet car. Part D of the policy," Coverage for Damage to you Auto, "states:
Our limit of liability for loss will be the lesser of the:
1. Actual cash value of the stolen or damaged property;
2. Amount necessary to repair or replace the property.
The policy also had a $200 deductible provision on any such loss.
On April 17, 1984, the car was in a motor vehicle collision completely demolishing it. The loss was duly reported to and investigated by USF&G.
On May 1 Newell went to the Jackson office of USF&G to settle his claim, and as instructed, took with him the bill of sale and invoice on the car. Jack Brown, a USF&G employee, made the settlement with Newell.
A representative of USF&G told Brown to depreciate the car at a rate of ten cents per mile and Newell and Brown agreed to depreciate the car at this rate. Since the car had been driven approximately 10,000 miles, they agreed to ...