McClemy v. Brown, No. 2

No. 2 | Del. Super. Ct. | Oct 12, 1916

Boyce, J.,

charging the jury:

This is an action of replevin brought by Myra McClemy against John Frank Brown, Theodore A. Veasey and Mary A. Veasey to recover the possession or value of an automobile which the plaintiff claims the defendant's unlawfully detained from her.

The sheriff, under the writ of replevin issued in this case, replevied the automobile in question, but, upon a claim of property, the defendants giving a property bond, he left it in their possession.

[1] The action of replevin lies for the possession of goods and chattels unlawfully detained from the owner, or the person entitled to the possession thereof. The primary object of the action is the recovery of the property itself with damages for the taking and detention thereof. Secondarily and usually the object is the recovery of a sum of mdney equivalent to the value of the property.

The first question for you to determine, under the evidence, is, who, as between the parties to this action, was entitled to the possession of the automobile, at the time of the issuance of the writ of replevin, on October fifteenth, A. D. 1914?

The plaintiff claims that she gave eleven hundred dollars to one Harold C. Abbott, who, at the time, was boarding with her and to whom she was engaged to marry, to buy for her a five-passenger Overland touring car; that Abbott accepted the money, bought the car and delivered it to her. It is conceded that Abbott bought the dar of one Perdue, a dealer in Salisbury, Maryland, for the price or sum of eleven hundred dollars; that Abbott made a deposit or part payment oh the ear of the sum of one hundred dollars, when he ordered it; that he paid the further sum of five hundred dollars at or about the time the car was delivered to him, and soon thereafter paid the further sum of three hundred dollars, leaving a balance remaining unpaid of the sum of two hundred dollars. It is not denied that the seller did not know the plaintiff in the transaction, or that credit was given to Abbott. It is not controverted that Abbott took out the license for the car, and had it insured, in his own name.

From all the evidence in this case, did the plaintiff give the money to Abbott to buy the car for her, or for himself?

[2, 3] In determining this question, you should consider all the evidence in this case, including the receipts for the payments made and the insurance policy, also the relation existing between the plaintiff and Abbott at the time the car was purchased. If you find that the plaintiff gave the money to Abbott to buy the car for himself, then your verdict should be for the defendants.

[4] If on the other hand, you find that Abbott, acting as the agent of the plaintiff, received the money from her for the purpose of buying the car for her and that he bought the car unconditionally, whether he applied all the money, which she gave him, or not, in payment of the car, the ownership and right of possession of the car immediately vested in the plaintiff.

The court is asked to give you binding instructions to find for the defendants. It is the opinion of the court that the case should be submitted to you for your determination under instructions on the 'law applicable to the facts of the case.

The court is also requested to instruct you that:

“A principal may recover his own property, or its value from third persons where it has been transferred, or disposed of by an agent contrary to his instructions, or duty, unless the principal has invested the agent with the indicia of title to the property, or authorized him to make such disposition, and the third party be a bona fide purchaser for value and without notice; when redress will be denied for the reason that where one of two innocent parties must suffer, it must be the one who made the commission of the wrong possible.”

‘‘It is not incumbent upon a person to whom one comes to sell an article, without any information of agency or anything to raise any doubt in his mind as to agency, to make inquiry. He has a right to presume that the person dealing with him, representing the property to be his own, is the owner.” Connally v. McConnell & Robinson, 1 Pennewill, 133, 39 Atl. 773.

[5] We cannot so charge you because there is in this case no claim whatever that there was any relation of agency between the plaintiff and Abbott, beyond the purchase of the car and none for ' the sale of the car. In the case just cited, it wa.s recognized by this court that .the rule laid down in that case is different where the possession of the vendor is tortious. In that case, unlike this, it was shown that the plaintiff intrusted to E. not only the possession of the property but also a paper purporting to guarantee him as to its quality. It is denied in this case that the plaintiff intrusted the possession of the automobile to Abbott for the purpose of sale, or knowingly with any indicia of title to the property.

If Abbott, as agent of the plaintiff, received from her money with which to buy the car in question for her, and he did so, then the agency ceased. If afterwards, Abbott by permission of the plaintiff used the car, her possession was not inconsistent with his custody.

[6, 7] When one lends property to another for temporary use, the former does not part with the possession, but only the custody of the property for the time being. The lending of property to another for use without pay constitutes one of the several kinds of bailment. The lender does not part with the possession, but intrusts the custody of the property to his bailee. If the latter embezzles or fraudulently converts the property to his own use, such conversion does not divest the owner of his title in the property; for it is'a well-recognized rule of law, that if personal property is sold without the consent of the owner by one who has only a temporary right to its use by lending, or otherwise, or a quálified possession of it for a specific purpose, as for personal use, the owner can follow and reclaim it in the hands of any person, however innocent. The possession of the owner cannot be divested by a tortious or fraudulent conversion, as by an unlawful sale to another.

If you find that the car was the property of the plaintiff, in the custody of Abbott with a temporary right to use it, and that he fraudulently sold it to the defendants, then your verdict should be for the plaintiff for such a sum as you find was the value of the car at the time the writ of replevin issued.

If you find that the plaintiff gave money to Abbott with which to buy the car for himself, then your verdict should be for the defendants.

Your verdict should be for that party in whose favor there is the greater weight or preponderance of the evidence.

Verdict for plaintiff.