260 P. 580 | Cal. Ct. App. | 1927
On the twenty-fifth day of July, 1925, one Ed.L. Wissler, a dealer in new and second-hand automobiles, at Marysville, California, entered into a contract of conditional sale with one Emanuel Kanupes, for a certain automobile known and called a "Jewett Businessman's Coupe." This contract set forth the purchase price of the automobile, the payment thereon of the sum of $440 upon the signing of the contract, and the balance thereof to be paid in monthly installments ending on the first day of February, 1927. The contract specifies that the purchaser agreed to make such payments according to the terms of the contract; that in the event of a failure to make such payments, the seller might repossess himself of said automobile and sell the same, and apply the proceeds thereof upon the contract, or might declare all of the unpaid installments immediately due upon the contract and bring suit therefor. The title to the property was reserved to the seller and was to remain in him until the full completion of the contract. Immediately upon the execution of this contract the said Wissler sold and transferred all of his right, title, *115 and interest in and to the property, and also to the conditional sales agreement, to the plaintiff in this action, and further guaranteed that the purchaser named in the conditional contract would comply with all the requirements thereof. The buyer of the automobile under the conditional agreement made one payment to the plaintiff herein and then defaulted. After the default of the buyer the plaintiff herein located the automobile in question in Fresno, took possession thereof, and placed the same in a garage in the city of Fresno. After doing this, the plaintiff, through its agent and representative, C.J. Busby, sent the garage check for the car to the original seller, Wissler, at Marysville, with directions to him to get the car and demanded that said Wissler pay to the State Finance Company the sum of $1,276 balance due on the contract. Wissler, either by himself or through one of his employees, after receiving the garage check, as herein stated, went to Fresno, received the car in question, and took it to Marysville, where it was placed upon the premises where Wissler was conducting the business hereinbefore referred to, the testimony also showing that Wissler maintained a garage in connection with his other business, the testimony being that Wissler, at Marysville, had a garage, a showroom, and a used-car lot and place out back for cars and a salesroom. The car was taken possession of by the State Finance Company and placed in a garage in Fresno, as above stated, late in November. Early in December, 1925, the agent of the plaintiff company saw the car at Wissler's place of business, but just where it is not stated. The testimony of some other witnesses is to the effect that the car was in the salesroom maintained by Wissler, and also that it stood for some days in the doorway or entrance thereto. Early in December, 1925, the automobile in question was sold to the defendant in this action, the defendant giving in exchange or purchase therefor to Wissler a car owned by him and the sum of $250. The car, at the time, contained no registration certificate. The purchaser being the defendant herein, requested new plates and a certificate, and was told the matter would be looked after. Upon cross-examination the agent Busby testified that he notified Wissler that his car was in Fresno and to come down and take it up to Marysville. This witness further testified: "I supposed *116 he would get the car in order to save storage charges on it in Fresno and probably take it to his own place of business." After stating that he had demanded payment from Wissler of the sum of $1,276, this witness testified that he made no other demand upon Wissler and that he gave him no other instructions. The witness further testified that he did not, and did not know of anyone giving instructions to Wissler to resell the car. The car was subsequently taken from the defendant's possession by the plaintiff and sold, and the proceeds thereof, in the sum of $1,100, applied upon the Kanupes contract hereinbefore referred to. The action herein was tried before a jury and the defendant was given judgment for the value of the car. From this judgment the plaintiff appeals.
Only one question is really tendered for decision herein. Do the facts which we have narrated in brief justify the conclusion that Wissler was given authority by the plaintiff to resell the "Jewett" automobile? Section 1142 of the Civil Code reads: "Where the possession of personal property, together with the power to dispose thereof, is transferred by its owner to another person, an executed sale by the latter, while in possession, to a buyer in good faith and in the ordinary course of business, for value, transfers to such buyer the title of the former owner. . . ."
The facts in this case differ from the circumstances upon which any of the cases cited to us by either appellant or respondent were decided. In the cases of Kenny v. Christiansen,
[1] We think the fact that the Finance Company sent the storage check for the car to Wissler at Marysville, notifying him to get the car which was stored at Fresno, with the understanding that he should remove the same to his place of business at Marysville, and at the same time demanded from Wissler payment of the amount due on the contract which he had guaranteed, justified the jury in inferring therefrom that the plaintiff intended to, and did, confer upon Wissler the power to make resale of the car in question, and that upon resale thereof the purchaser from Wissler would receive a title good as against any of the claims of the plaintiff in this action.
That the provisions of the Motor Vehicle Act relative to registration of automobiles has no bearing upon the facts of this case appears from the case of Boles v. Stiles,
[3] As hereinbefore stated, we think the acts of the plaintiff justified the inference on the part of the jury that authority was given to Wissler to resell the car, and if it did not actually confer such authority, the plaintiff went so far as to bring itself within the terms of section
The judgment of the trial court is affirmed.
Hart, Acting P.J., and Weyand, J., pro tem., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 12, 1927.