80 Ind. App. 436 | Ind. Ct. App. | 1923
This is an action by appellee against appellant to recover damages by reason of an alleged conversion of an automobile. After issues were joined, the cause was submitted to the court for trial, resulting in a judgment in favor of appellee for $757.80. Appellant filed a motion for a new trial, which was overruled, and this action of the court is made the basis of this appeal.
The only reasons for a new trial which we find it necessary to consider are, that the decision of the court is not sustained by the evidence, and is contrary to law. The material facts, as shown by the undisputed evidence, and the disputed evidence most favorable to appellee, are substantially as follows: Appellee is a corporation, engaged in buying and selling automobiles and commercial paper, with its principal office at Indianapolis, Indiana. Appellant is a finance corporation located at Evansville, Indiana. On March 18, 1920, one Peter H. Overbay was the owner of a Liberty automobile of the value of $1,800, which he had purchased a few days before of the Dunbar Motor Car Company. On that date he parked the same in the street in front of appellee’s place of business in Indianapolis, and while it was so located, he executed a bill of sale therefor to appellee, which recited a consideration of $1,259, and also executed to it a promissory note for $1,259, containing a conditional sale contract for the same automobile, which provided, among other things, that it should remain the property
From a consideration of the facts stated it is obvious, that unless the instrument, executed by Peter H. Over-bay to appellee, on March 18, 1920, purporting to be a conditional sale contract,covering the automobile in question, is valid as such, the judgment in this action cannot be sustained. We recognize the law to be, that where the owner of personal property sells and delivers it to a purchaser, not for the purpose of consumption or resale, at an agreed price payable at a future day, upon the express condition that the
Appellee has cited the case of Cable Co. v. McElhoe, supra, in support of its contention that the conditional sale contract in this action should be sustained as such, but we are of the opinion that the facts of that case are so far different from the facts of the instant case, as to render them distinguishable. However, if this were not true, we would be compelled to hold that the settled law, as here announced, was erroneously applied to the facts involved in that case.
Appellee also contends that the evidence fails to show that the chattel mortgage through which appellant claims was ever recorded. This contention is not sustained by the record. Appellant introduced his mortgage on the automobile in evidence, together with the certificate of acknowledgment attached thereto, and a recital endorsed thereon, signed by the recorder of the county in which the mortgagor at the time resided, to the effect that it was received for record and recorded on- July 8, 1921. The only objection made to any of this evidence was based on the sole reason that the “mortgage and loan shown” are not between the parties to the issues in this case. Under the circumstances stated, this certificate was sufficient to establish the fact in question. Moore v. Glover (1888), 115 Ind. 367, 16 N. E. 163.
For the reasons stated, we conclude that the court erred in the particular alleged, as it does not appear