77 Ind. App. 316 | Ind. Ct. App. | 1922
Action in replevin against appellee for the recovery of the possession of an automobile.
The complaint was in the usual form of complaints in replevin. Appellee answered in general denial, and with a second paragraph of answer in which it was averred, in substance, that appellants were residents of Plymouth, Marshall county, Indiana, and engaged in the business of purchasing and repairing second-hand automobiles; that appellee’s place of business was Knox, Starke county, Indiana, and that it was engaged in the purchase, sale and distribution of automobiles and accessories. Appellee purchased the automobile described in the complaint of one Edward Bougher, who was then in possession of it and claiming to be the owner thereof, and sold the same to appellee as his property. Appellee paid said Bougher $475 as the full purchase price. Appellants repaired said automobile so that the same could be driven, put gasoline and oil therein, and fully equipped the same, and sold, transferred and delivered the possession and ownership thereof to said Bougher. Appellee purchased said -automobile of said Bougher, and paid .the full purchase price in good faith, believing that said Bougher was the owner thereof, and had no notice or knowledge that appellants had, or claimed any right, title or interest in and to said property.
The case was submitted to a jury for trial which re- . turned a general verdict in favor of appellants, with answers to interrogatories upon which answers appellee moved the court for judgment in its favor, which motion was by the court sustained and judgment was rendered for appellee. The court’s action in sustaining appellee’s motion for judgment non obstante and in rendering judgment in favor of appellee, is the error assigned.
The substance of the answers to interrogatories, in narrative form, is as follows:
The interrogatory that elicited the answer that the conduct of appellants and not the conduct of appellee rendered, possible-the injury, should not have been submitted to the jury, but no question has been presented as to this error. However, without considering this answer, it is apparent from the facts’ as stated that appellants voluntarily parted with their automobile, and gave title thereto to Bougher accepting as a considera-, tion therefor a forged check. As against Bougher the contract of sale was clearly voidable, but it was not void. Appellants might have elected to affirm the sale and to sue for the purchase price. It is clear from the answers that appellee purchased the automobile of Bougher without knowledge of the fraud which had been perpetrated in the purchase thereof, and that appellee paid its money therefor in good faith. Appellee, having purchased under such circumstances, is not required to suffer loss. While appellants might have recovered their property while the same was yet in the hands of Bougher, they cannot recover it when it has passed into the hands of a bona fide purchaser for value. Bell v. Cafferty (1863), 21 Ind. 411; Claflin V. Scottman (1881), 77 Ind. 58; Curme-Dunn & Co. v. Rauh (1885), 100 Ind. 247; Levi v. Bray (1895), 12 Ind. App. 9, 39 N. E. 754.
The principle that where one of two innocent persons must suffer by the acts of a third person, he who has enabled such third person to occasion the loss must sustain it, controls in this case.
The judgment is affirmed.