283 N.W. 836 | Neb. | 1939
This is an action of replevin for a new Ford Tudor automobile, brought in the district court for Douglas county by the American Loan Plan, a corporation, against V. C. Frazell, John E. Frazell, and Marie Frazell. The record discloses that at the commencement of the action the plaintiff filed a petition, and also the statutory affidavit for a writ of replevin. It also appears that the writ of replevin issued, but the property claimed (the automobile in suit) was not taken thereunder, and the action proceeded as one for damages under the terms of the statute. Comp. St. 1929, sec. 20-10,106. A jury was duly impaneled, and, at the close of all evidence, the trial court sustained the motion of plaintiff, “to instruct the jury to return a verdict in its favor or that the jury be discharged and judgment entered for plaintiff,” and entered judgment in favor of plaintiff and against said defendants, V. C. Frazell and John E. Frazell, and each of them, for the sum of $446.99 and costs of suit. From the order of the trial court overruling their separate motions for new trial, the defendants appeal.
The following facts appear in the record, substantially without dispute, viz.: In September, 1935, John E. Frazell approached the McFayden-Stewart Company to purchase an automobile. He sought a “time plan” purchase. There was a difference between the automobile - price on a cash basis and when purchased on the “time plan.” As the bargain was finally consummated, on the basis of the time plan, he purchased a new 1935 Ford, Tudor model; he received an allowance of $78.75 for an old automobile which he traded in, paid $50 in cash, and together with his father, V. C. Frazell, executed and delivered to the McFaydenStewart Company a chattel mortgage note or contract in
Appellants’ first contention is that plaintiff cannot recover because in the affidavit in replevin it claims a right to recover by reason of a special ownership, and “the proof if any'Shows'general ownership or title.” The authorities cited by appellants in support of this contention are not in
As applied to an action in replevin in the district court, a civil action is commenced by filing in the proper court a petition and causing a summons to be issued thereon. Its jurisdiction is dependent upon the petition filed and not upon what may appear in the affidavit in replevin. Tiedtke v. Whalen, 133 Neb. 301, 275 N. W. 79.
In the instant case the pleader had properly pleaded in its petition the conditional sale contract and assignment which furnished the basis of its cause of action. In fact, its sufficiency is not questioned. The case of Hudelson v. First Nat. Bank of Tobias, 51 Neb. 557, 71 N. W. 304, appears to control in the case here presented. In such Hudelson case no attack was made upon the affidavit in replevin preceding or during the trial. We quote from the opinion by the court, viz.: “It will no doubt have been noticed that there was an entire absence of any statement, either in the words of the Code or in their equivalents, or of facts which showed the wrongful, or any, detention of the property by the plaintiffs in error. This was a fatal defect. An allegation of unlawful detention is essential. Cobbey, Replevin, sec. 542. But this was an action in district court, and the petition, duly verified and on file, contained the statement of the wrongful detention of the property, and this was sufficient to give jurisdiction to issue the writ, and it was
The appellants also contend that, “Where a purchaser of an automobile from a dealer receives a formal bill of sale complying with sections 60-310 and 60-325, Comp. St. 1929, transferring complete and absolute title to the purchaser, a subsequently executed conditional sale contract, signed by the purchaser purporting to reserve the title of the automobile in the dealer is a nullity, the dealer having transferred his title by giving the bill of sale as required by law.” In the instant case there are no third parties to this record. The controversy is between the appellants and the assignee of appellants’ contract. The controlling rule is, viz.: “Where a creditor accepts from his debtor any form of new agreement in place of a prior contract or obligation between them, with the intent to cancel the former and to substitute the new one therefor, novation by the substitution of an obligation takes place.” 46 C. J. 586.
Here, the conditional sale contract and assignment is supported by ample consideration. It is subscribed by both parties thereto. It creates by force of valid contract the rights therein specified, and is a valid, enforceable instrument. Klingensmith v. Clow & Sons, 270 Mich. 460, 259 N. W. 312.
The defense of usury, under the facts in this case, is clearly precluded by the. doctrine announced by this court in Grand Island Finance Co. v. Fowler, 124 Neb. 514, 247 N. W. 429. We are there committed to these views, viz.:
“A dealer in automobiles may in good faith sell a car on time for a price in excess of the cash price without tainting*723 the transaction with usury, though the difference in prices may exceed lawful interest for a loan.
“ ‘Where original purchase of automobile on credit was valid, it is immaterial in defense of usury to suit on note for car that finance company solicited contracts from automobile dealers and furnished schedules for that purpose.’ Commercial Credit Co. v. Tarwater, 215 Ala. 123.
“ ‘Purchase of note at discount beyond legal rate of interest does not constitute transaction “usurious.” ’ Commercial Credit Co. v. Tarwater, 215 Ala. 123.”
See, also, Fidelity Finance Co. v. Westfall, 127 Neb. 56, 254 N. W. 710.
So, too, the action in replevin was properly instituted against the defendants executing the so-called conditional sale contract and assignment. The property sought to be taken on the writ having been concealed and not recovered thereunder, the action properly proceeded as an action for damages against the same parties. The evidence in the record is clearly insufficient to prove the defense that the orginal transaction was a usurious loan instead of a sale.
It follows that the judgment entered by the trial court is correct, and it is
Affirmed.