*1 Sr., appellants, Jr., P. Rose, Rose, and U.S. National appellee. Omaha, Bank 352 N.W.2d 594 27, 1984. Filed No. 83-293. Hughes, appellants. S. for

Quintín P.C., Hansen, Locher, for Engles M. Locher of Thomas appellee. D.J., JJ., and Cheuvront, Grant,

Boslaugh, White, Colwell, D.J., Retired. D. J. Cheuvront, George P. replevin brought by the plaintiffs,

This action was Jr., Rose, against the U.S. National Omaha, plaintiff George P. Bank of defendant. action, a namely, object of the

prayed possession for plaintiff Styleside truck. The pickup certain 1979Ford Rose, a Sr., he had prayed that the court find that damages resulting from the interest” the said vehicle and trial, pickup replacement need to rent a vehicle. Prior to proceeded to and the case plaintiffs truck was returned to the question trial on

only plaintiff seeking this relief. and the defend-

Following jury, trial both the verdict; motion ant the defendant’s moved for directed verdict reviewing the directed In directed verdict was sustained. adduced competent evidence all is entitled have fact true, every controverted on his behalf treated as have favor, every have inference resolved in his and to the benefit Valley reasonably can be drawn from evidence. Bank Mattson, *2 17,1979, a July George purchased P. 1979Ford On Inc., Center, on Styleside pickup Sapp Bros. Ford monthly providing payments an installment sales contract month, being pay- $137.53 due 30th of each the first August 30, assigned to de- able on 1979. This contract was the fendant, in and a lien notation favor of the was noted defendant 31,1979. to on the title the vehicle on payments under Numerous due the installment sales contract payments paid delinquent; were not until most of the received Rose, Sr., by by George the defendant were on checks written P. George Sodding Grading April the account of P. Rose & On Co. 1, 1981, employee an of the defendant went to the home of GeorgeP. Rose, Jr., $205.14 to a delinquency either collect possession Although take of the truck. unable contact Jr., George Rose, employee P. the did delinquency discuss the mother, Rose, George with his Mrs. gave P. Sr. Mrs. Rose the employee George a defendant’s check drawn on the account of Sodding Grading P. Rose & Co. at Ashland State Bank $205.14, stating good. the amount of that the check was Later day, Connelly, that the check was delivered to Janet loan a coun- 2, 1981, employed by selor April the defendant. On Mrs. Con- nelly telephoned the Ashland State Bank and was informed that $205.14 there were insufficient funds in pay this account to fact, check. In negative $783.01 the account had a balance of on April Connelly 1981. Mrs. sent the check to the Ashland 8,1981. Bank April State for collection on no There is evidence by as to the exact date the check was received the Ashland State Bank, although it posses- is conceded that the check was in the 17, 1981, April sion of the bank Friday. on a 21, 1981; paid April afternoon, The check was late that payable placed cashier’s check to the in recep- defendant was tacle which was to be delivered evening. to the defendant that Jr., These George Rose, funds were credited to the account of P. 23,1981. the defendant on There were sufficient funds pay this account to prior April this check on two occasions but, 21,1981, inadvertence, the Ashland State Bank failed to pay repossessed it. On the truck was the de- fendant, damage which time it was found to have extensive at windshield, hood, right bumper, and fender. grille, front hearing, the truck was re- Following temporary replevin plaintiffs. turned to the

It is not clear from the record what the exact nature of the Rose, Sr., George interest” of P. was the truck. Rose, Sr., all install- evidence shows that P. made defendant, original down- payments ment to the other than payment; in the that used the truck business Co.; he Sodding Grading paid that P. Rose insurance, maintenance, and fuel for the truck. The evi- finding the use of the truck support dence Sr., George Rose, consent of permission was with Jr., Rose, position aof bailee. theory recovery entirely

Although plaintiffs’ is not clear, appears principal appeal it that the issues raised are *3 by as to (1) telephone follows: call the presentment pay for Ashland State Bank did not constitute (2) The ac (Reissue 1980); ment under Neb. U.C.C. 3-504 § ceptance of the check the bank constituted a sus defendant pension obligation (Reissue under U.C.C. 3-802 Neb. § 1980); (3) equitably estopped The defendant bank was repossessing from security accepted the because it had the give plaintiffs $205.14 check on did not the warning prior repossessing further vehicle. We will ad to the only. equitable estoppel the dress second issue The doctrine of Grange application no v. Chappelear this case. See Co., (1973). Farmers Ins. 921 Fur 190 Neb. 210 N.W.2d ther, telephone the did not con defendant concedes that the call presentment Kirby Bergfield, v. 186 stitute under the rule in 242, 182 N.W.2d Neb. (1970). 205 provisions 3-802(1) (Reissue

Under the of Neb. U.C.C. § 1, 1981, by the de 1980), acceptance the of the check on underlying obligation until its suspended pro fendant the tanto enforcing any presentment. precluded The defendant was was dishon right check security agreement under the until the Hall, 226 ored. Neb. Corp. Westland Homes Although question check here bore N.W.2d 622 the (1975). notations, the Ashland Bank and the de- special no both State “for that was sent to the State Bank fendant concede it Ashland specific that there were no instructions attached collection” and included with the check. or payor the bank for When a check is forwarded to collection period to be reasonable of time until sufficient and is held check, pay such become available the account to the funds delivery meaning presentment is within the of Neb. Industries, (Reissue 1980). U.C.C. 3-504 Idaho Forest Inc. v. § Co., 820, 326 Minden Exch. Bank & Trust N. W.2d 176 no the presentment, Since there was check could not be rights dishonored and the defendant had no enforcement under security conclude, therefore, We agreement. its the seizure unlawful, of plaintiffs defendant was since the were not in default. argues

The defendant that even if there no default payment, it was entitled seize truck under the terms of agreement protect security order to its reason the exten- However, sive argument ignores testimony employees repossessing sole reason for the truck payment. delinquent was the attempted copies agree to introduce of rental leasing

ments an auto business in order to show the damages by George Rose, amount of sustained R Sr. These agreements described the monthly rental vehicle and listed mileage Objections rental fees. to these exhibits sus were tained the trial court the basis of foundation. In Husebo Ambrosia, Ltd., 204 Neb. we (1979), held that the damages measure of for the loss of use a vehicle is an amount which does not exceed either the fair rental value of a vehicle of similar nature length reasonable time *4 actually paid, amount whichever is the least. We stated: “There is indicating no evidence charges actually paid that the for the use of the leased were vehicles not fair reasonable, they or that exceeded the fair rental value of such locality 502, 283 vehicles in the at involved.” Id. N. W.2d at 47. agreements Under this rule these rental be admissible show the paid amount for the rental vehicle. judgment is reversed and the cause

The of the district court new trial. remanded for a a new trial. and remanded

Reversed Grant, J., dissenting. Rose, Sr., George I feel that respectfully

I dissent. do not any standing in this case and that the action of the trial dismissing proper was and should be affirmed. court case Rose, Jr., Plaintiffs, George George P. 29,

brought damages May replevin this action in and for on petition alleged George junior purchased had 1981. 1979; pickup George junior was the certificate truck of title holder as to the truck but that senior had made truck; payments all the and that the defendant bank had a recorded lien on the certificate of title to the truck. Defendant vehicle, self-help replevin bank had used to recover the without action, hearing, on 1981. After the initial the district court on June ordered this truck returned to plaintiffs. apparently The truck was returned to its owner of record, part who took no further case. February 7, proceeded

The case to trial on plaintiff George seeking damages for the loss of use during wrongfully truck the time the truck was taken apparently June bank — trial, George junior appear did nor 1981. at was evidence submitted his behalf. evidence at trial monthly payments showed that the on the truck had been made “George checks written on check blanks entitled P. Rose Sodding Grading Co.” and drawn on Ashland State Bank. “George The title of the account State Bank was at Ashland Grading Rose Sod Co.” There was no evidence as to whether corporations, partnerships, these entities were sole otherwise, proprietorships, or what senior’s connections with those entities were. sodding used in the senior testified the business,

company specify but did not what the terms of that contract, written, were. oral or was testified to. use No *5 This evidence was junior worked in the business. also allegation that he had a apparently the basis for senior’s “special allegedly in The interest” “special interest” the truck. damages. George senior entitled to seek meaning the term I am unable to discover Dictionary 1979), ed. in (5th interest” in Black’s Law Digest, (1939, Supp. Cum. Descriptive-Word Nebraska Index 1980, Digest, Supp. in 12 Words and 1983), or Nebraska 1971, Supp. 1983). The is (1940, Supp. Phrases Cum. term vaguely pled petition haphazardly attacked in and, answer, my conveying enough in judgment, incapable is give meaning standing senior to seek recognition difficulty, says majority The indicates of this but finding in support the evidence that senior was contracts, position of a bailee. Bailments are all based on See, Ritter, express implied. e.g., Simpkins or 189Neb. (1973), 204 N.W.2d 383 and Peck Masonic Manor Hotel, Apartment N.W.2d 589 testimony any George junior does not disclose contract between senior, and George and I fail to see how we can there determine any parties. bailment between those problem dealing the further that here There is we are with a 60-105(1) (Reissue 1978) motor vehicle. Neb. Rev. Stat. § provides part: any equity “No court case at or in law shall title, claim, recognize right, any person or interest of toor any of, disposed vehicle . . or mortgaged motor . sold or or encumbered, compliance unless there is section.” trying senior is an to establish “interest” in this motor arising vehicle some sort of an encumbrance on that vehicle alleged out of some transaction with the owner of the vehicle. This is not transaction noted certificate of title. As stated McNamara, in The Cornhusker Bank Omaha v. 205 Neb. 504, 508, 288 290 (1980): Legislature has mandated that no court shall title, claim, any recognize right, any interest of person any in or to motor unless is vehicle there 60-105, compliance with 1943. It is section R.R.S. clear good plaintiff this court that the has made no faith effort court, statutory requirements. This comply with the therefore, recognize any claim of lien or refuses to legal claim of title and holds upon plaintiff may against be successful replevin. an action he my judgment, George prove

In senior has failed to *6 question. privity truck in He is in no interest bank, duty and whatever was owed contract with the defendant debtor, George junior, owner of the the bank was owed to its truck, George junior’s father. and not

I would affirm. Myrtle Massie, In re Estate deceased. Representative Joseph F. Massie, Personal of the Estate Myrtle appellee. Massie, Massie, appellant, v. Gifford E.

353N.W.2d 735 27, 1984. Filed No. 83-438.