281 N.W. 110 | S.D. | 1938
Lead Opinion
This is an action to recover damages for conversion of an automobile. The defendant, Lerew, was the owner of the automobile and mortgaged it to the plaintiff. The mortgage was duly filed with the register of deeds of Faulk County. While this mortgage was in effect, and at the time when the indebtedness secured was past due, Lerew traded this automobile to the defendant, Warner. At the time Lerew transferred title to Warner, he informed Warner there was a mortgage on the car but stated that other properties were covered by this mortgage which would more than pay the mortgage indebtedness. When Warner got the automobile in his possession he took the motor out, reconditioned it, and installed it in another car of similar make and offered this car for sale. He also took the transmission out of the mortgaged car. The evidence is conflicting upon what happened to this transmission. Warner first testified that he had sold this transmission. *216 However, he later testified that the transmission was installed in the same car as the motor. After learning that the mortgaged car was in the possession of Warner, the plaintiff demanded from him the money due on the note, which was secured by the mortgage. Plaintiff did not demand possession of the car. Plaintiff testified: "At no time previous to the commencement of this action have I ever demanded the possession of that car from any one." At the time plaintiff demanded payment, Mr. Warner was still in possession of the mortgaged car in the condition in which he received it except for the removal of the engine and the transmission. He also had possession of the car in which he had installed the motor from the mortgaged car. After plaintiff had demanded payment of the note Mr. Warner took the motor from the car in which it had been installed and replaced it in the mortgaged car. He also, according to his testimony, replaced the transmission. The motor when reinstalled in the mortgaged car had been reconditioned. Thereafter Warner returned this mortgaged car to the defendant, Lerew, and so informed the plaintiff. This action was not started until some time after the car had been returned to Lerew and the plaintiff notified of this fact.
[1, 2] At the close of the testimony both plaintiff and defendant moved for a directed verdict without reservation of right to go to a jury on any question involved in the case. By such motions the parties consented that the court should decide all questions of fact as well as the questions of law. The trial judge under these circumstances directed a verdict for the plaintiff which has the effect of resolving all disputed questions of fact in favor of plaintiff, and we must review the evidence with this rule in mind. See Sioux National Bank v. Lundberg,
[3, 4] The appellant bottoms his appeal upon the failure of the plaintiff to make demand for the return of the mortgaged car. It is appellant's position that without such demand this action for *217
conversion cannot be maintained. The indebtedness being due, plaintiff's right to possession under the terms of the mortgage had accrued. A demand was therefore not necessary to bring into existence plaintiff's right of possession. Appellant relies principally upon the case of Catlett v. Stokes,
The case of First National Bank of Pipestone v. Siman,
The acts of the purchaser after receiving the mortgaged property being in defiance and derogation of the rights of the mortgagee and constituting a conversion, there is no necessity to decide whether the simple purchase of the mortgaged property is of itself sufficient to constitute a conversion.
[5, 6] The return of the automobile by Warner to the mortgagor, as disclosed by the evidence, does not constitute a defense. The conversion was complete when Warner dismantled the car, sold the transmission, and placed the motor in another car and offered it for sale. The return of the car to the mortgagor was never agreed to by the plaintiff, and could not in any way affect his rights. It is generally held that an offer to restore property after a completed conversion, or an actual return of the goods to the premises of the plaintiff without an acceptance, does not affect plaintiff's cause of action. Haubrich v. Heaney,
The judgment and order appealed from are affirmed.
ROBERTS, P.J., and WARREN and SMITH, JJ., concur.
POLLEY, J., concurs specially.
Concurrence Opinion
When the defendant, with knowledge of the existence of the chattel mortgage, purchased the car and took it into his possession as his own, he at once became guilty of the conversion thereof and plaintiff's right of action for such conversion became complete. The removal of the *220 motor and transmission from the car, and defendant's efforts to sell the same, or any part thereof, are wholly immaterial to plaintiff's right of recovery.