160 P.2d 995 | Colo. | 1945
THE action herein involved is in replevin. The proceeding was instituted below by defendant in error, hereinafter designated as plaintiff, against C. Lee Hoffman for the possession or value of two Marine engines; one of six-cylinders and the other of four, with certain accessories. By reason of plaintiff's election to not file an undertaking in replevin, no writ was issued and the sheriff made no attempt to take possession of either of said motors in advance of judgment. Before issue was joined, upon motion of C. Lee Hoffman, Caspar Hofmann, plaintiff in error, was made a party defendant. Due to the similarity in the surnames of the original and interpleaded defendants, who, however, are without consanguinity, we shall refer to C. Lee Hoffman as the boatmaker and to Caspar Hofmann as the defendant. The answer of the boatmaker controverted plaintiff's claim to possession of the four-cylinder motor, while that of defendant raised such issue as to the six-cylinder motor. At the trial verdicts for the plaintiff were returned on both phases of the case. Subsequently defendant's motion for new trial was overruled, and it appearing to the court's satisfaction that the delivery of the six-cylinder motor was not feasible, a money judgment for the value thereof, $481.25, was found by the jury, plus interest, was entered against defendant, who brings the case here for review. The boatmaker is not a party to this proceeding in error and presumptively plaintiff by his action secured possession of the four-cylinder motor, the value of which as fixed by the jury was $356.00.
In November, 1938, the boatmaker, who operated a custom shop near Sloan's Lake, Denver, entered into a written agreement to build a power boat for defendant for the sum of $1185.00 (subsequently fixed at $1360.00), *587 to be paid fifty per cent down; twenty-five per cent when the hull was finished, and the balance upon completion of the boat and its acceptance by defendant. On December 15, defendant made a down payment of $650.00, followed by payments of $325.00 on April 27, 1939; $200.00 on July 22 and $100.00 on August 15, a total of $1275.00. The contract specified that all materials, including the motor, should be provided by the boatmaker.
Coincidentally, late in 1938 or early in 1939, the boatmaker and plaintiff arrived at a verbal understanding for the construction of another boat for the latter, the exact size and cost of which were to be determined and agreed upon as the work progressed. By way of advance therefor plaintiff paid the boatmaker $500.00 in January, 1939, and in March following paid him an additional $100.00.
In January, 1939, the boatmaker, in his name, ordered from a manufacturer the two motors herein involved; the four-cylinder job for plaintiff's boat, and the other for installation in defendant's boat. Plaintiff knew at the time, that the six-cylinder motor was ordered for placement in a boat in construction for another on a contract calling for periodical payments, but did not learn until about May 1st that such person was the defendant nor, until shortly before suit, of the precise plan for payment provided. Early in May, 1939, the motors, which had been shipped C. O. D. on sight draft for about $587.00, arrived in Denver. At about this time, as related by plaintiff, he was advised over the telephone by the boatmaker that the two motors were due to arrive shortly; that he did not have enough funds to cover the sight draft and requested plaintiff to advance an amount sufficient therefor; that in personal conversations between the two within the next few days, plaintiff upon the basis that construction on his boat had not so much as started, protested against advancing so much additional money, and asked the boatmaker why he did not obtain the *588 money for the motors from his other customer (defendant), whose boat was in the process of fabrication, to which the boatmaker replied that he had so attempted but that defendant had stated, "he was keeping up the payments in accordance with contract and didn't feel called upon to make further advances." That plaintiff suggested that if he made the advance he should "be given a bill of sale for both motors so I would have security to show for the moneys." Finally, on May 5, plaintiff gave the boatmaker a check for $575.00.
On May 10, the boatmaker executed and delivered a bill of sale to plaintiff, also signed by the latter, in which the two motors and accessories were specifically and accurately described. The bill of sale, which was prepared under the direction of plaintiff, was absolute in form and recited the consideration as $675.00, computed, as plaintiff testified, by the addition of the $575.00 advanced on the 5th and the $100.00 which, as hereinabove stated, plaintiff had paid to the boatmaker in the March previous, upon the basis that the latter had been a loan rather than a payment on the boat in contemplation. At the time the bill of sale was given both motors were located in the boatmaker's shop. The instrument was not acknowledged and never was filed or recorded. No delivery of the motors to plaintiff was made then or afterwards. On the witness stand plaintiff admitted that at the time he took the bill of sale he had the expectation that the six-cylinder motor would be installed in the boat under construction for defendant. The understanding attending the delivery of the bill of sale, as stated by plaintiff, was: "At the time that I put up the $575.00 to pay the balance of the purchase price of these two motors it was agreed between me and the boatmaker "I would be repaid that $575.00 when" the boatmaker received his next payment from defendant, "which was to be about two weeks from that time, or at the time he finished the woodwork on the boat he was working on." The boatmaker testified that he *589 gave plaintiff the bill of sale "in case anything happened to me he would have insurance to protect him; not for any consideration or any money, but it was just in case anything happened to me," and further stated that he did not know the six-cylinder motor was included in the bill of sale until after he had signed the same. As will appear, defendant had no notice or knowledge of this transaction until the middle of August.
Subsequent to the giving of the bill of sale, the six-cylinder motor and accessories were installed in defendant's boat. Plaintiff, who was a frequent visitor at the boatmaker's shop, estimated the time of such installation as being about three weeks after the bill of sale was given, while defendant fixed the occasion as falling in the latter part of July. While the boatmaker had laid out plans for plaintiff's boat in March, it appears that he never proceeded with its actual fabrication, and in July, 1939, informed plaintiff that he was without funds to finance such construction. The four-cylinder motor ordered for plaintiff's boat continued to remain in the boatmaker's shop.
The complaint in the replevin action, which named the boatmaker as the sole defendant, was filed August 16, 1939. On that date plaintiff sent a letter to the boatmaker making "demand * * * for the immediate delivery" of the two motors and accessories "owned by the undersigned." On the same day plaintiff mailed the following communication to defendant: "I enclose herewith copy of a demand I have just made on Mr. C. Lee Hoffman. The reason I am sending you this is to put you upon notice that the engine in the boat I am informed Mr. Lee Hoffman is building for you is my property and not that of Mr. Lee Hoffman. You will also please take notice that I am starting a replevin action today to establish my ownership of the engine and my right to immediate possession thereof. Defendant testified that such was the first notification he had that plaintiff asserted any interest in the motor which had *590 been installed in the boat which was being constructed for him. Plaintiff testified that, in addition to the above-quoted letter of August 16, he had mentioned his claim to defendant in a conversation held the day before.
It is undisputed that subsequent to the date of the bill of sale, and prior to any notification to him whatsoever thereof, defendant paid the boatmaker $200.00 as purchase price installments on his boat. An additional $100.00 was paid on August 15, which was near the conflicting dates of notification of plaintiff's claim, but counsel for the latter seems to concede that the full $300.00 was paid on the purchase price of the boat in the interim between the date of the bill of sale and that of alleged notice. These payments, with those made previously, left a balance of $85.00 due on defendant's boat as of the day of suit. On that date, according to defendant's version, "the boat was practically completed * * *, probably the varnish had to be dried a little more and some detail might be yet left." Plaintiff stated that in July defendant's boat "was nearly completed," while the boatmaker said defendant "accepted delivery" the latter part of August. All agree, however, that defendant did not take his boat from the boatmaker's shop until September 20.
It also appears from uncontroverted testimony that upon the day the replevin action was instituted it would have been possible, though not without difficulty, to have removed the motor from defendant's boat. However, due to the boatmaker's refusal to deliver on plaintiff's demand and the election of the latter not to procure a writ of replevin, no separation of the motor from the boat was ever attempted, and never at any time did plaintiff secure the actual possession of the motor. The complaint alleged simply that the boatmaker "had and still has possession of the following described personalty of plaintiff [the two motors and accessories], of the value of $837.30;" "That * * * on or about the 16th day of August, 1939, plaintiff demanded possession *591 thereof" of the boatmaker, but that he "then and there refused * * * to deliver the same to plaintiff," and prayed judgment "for the possession of said property or the value thereof if it cannot be delivered and for damages for the detention * * * in the sum of $837.30."
On September 14th, on motion of the boatmaker as above stated, defendant was ordered to be interpleaded. The record is silent as to when, if ever, he was served with summons, but it does disclose that his answer was filed on December 14th. Therein defendant admitted the possession of the six-cylinder motor; denied plaintiff's claim thereto, and pleaded five special defenses, the affirmative phases of which were put in issue by plaintiff's replication.
As grounds for reversal defendant specifies the following points:
(1) That the court committed error in refusing to grant defendant's motion for nonsuit grounded upon the alleged failure of plaintiff to prove his right of ownership and possession; (2) that the transaction in question was no more than an attempt to create a chattel mortgage relationship between the parties which was ineffective because of failure to have the bill of sale acknowledged or placed of record; (3) that the court should have given proper instructions on the defense of estoppel; and, (4) that certain given instructions were erroneous in form and substance.
[1] Considering the evidence and the law applicable, as hereinafter stated, we are satisfied that plaintiff failed to establish the right of recovery asserted against defendant, and that the latter's motion for a nonsuit should have been sustained. This view makes it unnecessary for us to make pronouncements on the remaining specifications of points, notwithstanding it appears that each may have substantial merit.
The transaction in consideration, being, as stated for the record by his counsel in the course of the trial, that plaintiff "had this bill of sale as security for $675.00," *592
had the same legal effect as the relationships considered by us in Andrews Co. v. Colorado Savings Bank,
[2] It is well established that the consent of the chattel mortgagee that his mortgagor sell the mortgaged property to a third person and receive the proceeds, when acted upon, constitutes, as to the purchaser, a waiver of the lien of the mortgage. Ziegler v. Ilfeld,
It is to be noted in this connection that where, differently from the situation herein, the third party purchaser agrees that the lien of the mortgage shall continue as a valid obligation until the indebtedness is paid *593
and the consent of the mortgagee to a sale by the mortgagor is given on that condition, the lien is not waived unless the condition is performed. The cases of Pratherv. Auto Corporation,
The judgment is reversed and the cause remanded with the direction that it be dismissed. *594
AMENDMENTS TO RULES OF CIVIL PROCEDURE
Rules 4 (f), (g) (2) (iv) and (h); 98(c); 111(c); and 115 (i) are amended to read as follows:
RULE 4
(f) PERSONAL SERVICE OUTSIDE THE STATE. Personal service outside the state may be made:
(1) In any action, upon a natural person over the age of 18 years who is a resident of this state by delivering a copy of the process, together with a copy of the pleading upon which it was issued, to the person served. [From Wyo. Comp. Stat. 1920, Secs. 5636, 5641.]
(2) In any action, upon a person domiciled in this state, other than a natural person, by delivering a copy of the process, together with a copy of the pleading upon which it was issued, in the manner provided by this rule for personal service in this state upon such person.
(3) In any action affecting specific property or status or in any other proceeding in rem, upon a natural person of any age, without regard of his residence, or upon any other person, without regard to its domicile, by delivering a copy of the pleading and process thereon, in the manner provided by this rule for personal service in this state upon such person. Service under this paragraph 3 upon a natural person under the age of 18 years may be made by delivering a copy of said pleading and process to such person and another copy thereof to the other person designated in subparagraph (e) (2) of this rule, wherever, within or without this state, such other person may be found. [From Code, Sec. 45.]
(4) No provision of this subdivision (f) shall be *595 construed to limit the right to serve process in any other manner authorized by this rule.
(g) (2) (iv) Nonresidents of the state; persons who have departed from the state without intention of returning; persons who conceal themselves to avoid service of process; or persons whose whereabouts are unknown and who cannot be served by personal service in the state. [From Code Sec. 45 (b).]
(g) (2) (h) Publication. The party desiring service of process by publication shall file a motion verified by the oath of such party or of someone in his behalf for an order of publication. It shall state the facts authorizing such service, and shall show the efforts, if any, that have been made to obtain personal service within this state and shall give the address, or last known address, of each person to be served or shall state that the same is unknown. The court shall hear the motion ex parte and, if satisfied that due diligence has been used to obtain personal service within this state, or that efforts to obtain the same would have been to no avail, shall order publication of the process in a newspaper published in the county in which the action is pending. Such publication shall be made for four weeks. Within 10 days after the order the clerk shall mail a copy of the process to each person whose address has been stated in the motion. Service shall be complete on the day of the last publication. If no newspaper be published in the county, the court shall designate one in some adjoining county. [From Supreme Court Rule 14A, Code Secs. 45, 46, 47 and 50.]
RULE 98
(c) VENUE FOR TORT, CONTRACT AND OTHER ACTIONS. Except as provided in subparagraphs (a) and (b) of this rule, an action shall be tried in the county in which the defendants, or any of them, may reside at the commencement of the action, or in the county where *596 the plaintiff resides when service is made on the defendant in such county; or if the defendant be a nonresident of this state, the same may be tried in any county in which the defendant may be found in this state, or in the county designated in the complaint, and if any defendant is about to depart from the state, such action may be tried in any county where plaintiff resides, or where defendant may be found and service had; provided, however, that an action on book account or for goods sold and delivered may also be tried in the county where the plaintiff resides or where the goods were sold; an action upon contract may also be tried in the county in which the contract was to be performed; an action upon note or bill of exchange may also be tried in the county where the same was made payable; and an action for tort may also be tried in the county where the tort was committed. [From Code, Sec. 29.]
RULE 111
(c) HOW OBTAINED. To obtain a writ of error a party shall within the time fixed by this rule docket the case in the supreme court either by filing a praecipe for a writ of error or by filing a record of the proceedings in the trial court prepared in compliance with Rule 112. There shall also be filed with the record a designation of the parties, which lists the names of the plaintiffs in error and of the defendants in error. Where the record is not filed at the time of the docketing, the clerk of the supreme court shall issue and transmit to the clerk of the trial court a writ of error commanding that a correct transcript of the record of the case be certified to the supreme court within 60 days from the receipt of such writ, or within such additional time as the supreme court may order. Where the record is filed at the time of the docketing, the clerk of the supreme court shall issue a writ of error and shall file the same with the record of the case. [Part new and part from Supreme Court Rule 19.] *597
RULE 115
(i) NUMBER OF COPIES TO BE FILED AND SERVED. One original copy of every typewritten brief and typewritten abstract, and one original copy of every motion shall be filed. Two copies of each printed brief, abstract, or other printed paper, and one copy of each typewritten paper shall be served on all parties, and proof of service filed with the clerk. No such service shall be required upon a defendant in error who has not entered his appearance in the supreme court as stated in the summons to hear errors, but in lieu of such service one additional copy of each such paper shall be filed. [From Supreme Court Rules 38 and 46.]
NOTE
For service see Rule 5. See also subdivisions (a) and (b) of this Rule 115.
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