209 P. 55 | Cal. Ct. App. | 1922
In this action judgment was rendered in favor of plaintiff Verne W. Taylor for the possession of an automobile, or for the sum of $1,000, the value thereof, in the event possession could not be had, and for the further sum of $400 damages against the defendant J. H. Bernheim, for the wrongful detention of said automobile. The defendant Bernheim has appealed.
There are two persons named Taylor involved in this transaction; the plaintiff, Verne W. Taylor, and his son, Verne J. Taylor, and for convenience they will be hereinafter respectively referred to as Taylor, Sr., and Taylor, Jr.
On October 21, 1920, the defendant Bernheim commenced suit against Taylor, Jr., to collect an indebtedness of $1,850, and a writ of attachment was issued and placed in the hands of the defendant Thomas F. Finn, as sheriff, for service. The latter levied the writ upon the automobile in question, which at the time was stored in the name of Taylor, Jr., in a public garage, on Geary Street, in San Francisco. The next day Taylor, Sr., claiming to be the owner of said automobile, presented to and filed with said sheriff a verified third party claim, in the form required by section 689 of the Code of Civil Procedure. The sheriff thereupon, pursuant to said code section, exacted from Bernheim a bond indemnifying him against the claim of ownership asserted by Taylor, Sr. The possession of said automobile was thereafter retained by the sheriff, by virtue of said attachment, and on November 30, 1920, Taylor, Sr., commenced this action, to recover said machine, or its value, and damages for its detention. The main issue before the trial court was the one of the ownership of said automobile, that is, whether it belonged to Taylor, Sr., or to his son, Taylor, Jr.
According to the evidence, Taylor, Sr., who was a traveling salesman, was in need of an automobile for use in his business. On account of his absence from San Francisco he was unable to purchase one personally, and he told his son that if the latter found a suitable machine, to buy it. *406
A few days prior to July 20, 1920, Leon Leboire, the former owner of the car in question, advertised it for sale, and in answer to that advertisement, Taylor, Jr., called upon him for the purpose of examining said car. After some negotiations they came to terms and Taylor, Jr., so reported to his father. The latter thereupon gave his son $1,400 with which to buy the car, of which $800 was in cash and the balance consisted of a check for $600. That check was produced at the trial. Taylor, Jr., deposited the check in his personal account in the bank, and on July 26, 1920, purchased the car, by delivering to Leboire a certified check, drawn by himself on his personal account for $1,400. At the request of Taylor, Jr., the bill of sale for the car was made out by Leboire to Taylor, Sr. The car was delivered to Taylor, Jr., and remained in his possession, and was used by him substantially all of the time until it was attached on October 21, 1920. During that period Taylor, Sr., only drove the car on two or three occasions and then around San Francisco and at one time drove it on a hunting trip with his son for a period of about fifteen days. The automobile license certificate accompanying the car was transferred direct from Leboire to Taylor, Sr., but the transfer was not completed until October 8, 1920.
Upon substantially the foregoing evidence the trial court found that Taylor, Sr., was the owner of said automobile. There are, of course, other circumstances shown by the record, which appellant urged before the trial court, in support of his theory that Taylor, Jr., was the owner of the car in question. But, at best, those circumstances merely raise a conflict, and we therefore deem it unnecessary to relate them here.
[1] Appellant now attacks the finding of ownership upon the ground that it is not supported by the evidence. It is obvious, however, we think, that inasmuch as the trial court placed faith in the credibility of the Taylors, as witnesses, and believed their testimony, their evidence is sufficient in law to support the court's finding. It shows that while Taylor, Sr., did not personally make the purchase, nevertheless the car was purchased at his request and with his money, and he became the owner thereof. The use of the car by Taylor, Jr., as shown by the evidence, *407
with the consent of his father, tended in no way to destroy the title of Taylor, Sr. If Taylor, Jr., had acquired ownership of the car in the first place, and thereafter transferred the title to his father, then the use of the car thereafter by Taylor, Jr., in the manner and to the extent shown by the evidence, would present a different situation and would have been sufficient to invoke the provisions of section
[2] On this question of plaintiff's ownership and his consequent legal right to maintain the action, appellant has sought the aid of the Motor Vehicle Act of California, upon the ground that the automobile license was not legally transferred to Taylor, Sr., for nearly three months after the purchase. In this respect said Motor Vehicle Act provides that until the transferee of an automobile has received a certificate of registration and has written his name upon the face thereof, delivery of said automobile shall be deemed not to have been made and title thereto shall be deemed not to have been passed and said intended transfer shall be deemed to be incomplete and not to be valid for any purpose.
We are of the opinion that this point is not available to appellant for the reason that, while said license was not transferred for several weeks after the purchase, the required certificate of transfer was issued to and signed by plaintiff on October 8, 1920, almost two months prior to the commencement of this action. Plaintiff's title was, therefore, complete, so far as the motor vehicle law was concerned, at the time of the commencement of this action. In the case of Boles v. Stiles, 35 Cal.App. Dec. 721 [see, also,
[3] Appellant further contends that there is no evidence to sustain the judgment against Bernheim for the recovery of the car or for damages, for the reason that it *408 was the sheriff and not Bernheim who seized the car and detained it from the possession of plaintiff.
We are of the opinion that the point is without merit. It may be conceded that it is the general rule that an action of claim and delivery will lie only against the persons who have the possession of the property in dispute at the time of its commencement. (Richards v. Morley,
In the instant case the evidence shows that the sheriff was acting merely as the agent of appellant, and had no interest in the matter other than as an officer, and that he was holding the property subject to the direction of appellant. Under the provisions of said section 689 of the Code of Civil Procedure he was not bound to hold the property in the face of the third party claim, unless Bernheim as the attaching creditor furnished an indemnifying bond, which he did. Thereafter it was always within the power of appellant to cause the release of the property, if he cared to do so, by giving the sheriff instructions to that effect. It must therefore be held that appellant was in the ostensible and actual control of the property and consequently is liable for any damages resulting from its unlawful detention.
That the attaching creditor may be joined as a defendant with the attaching officer, in replevin, is not without precedent, *409
for in the earlier decisions of the New York courts such was held to be the law. In Knapp v. Smith et al.,
Under the rules above stated, we are of the opinion that the evidence fully justified the rendition of the judgment against the appellant.
[4] Appellant complains of the ruling of the trial court striking out, as hearsay, on motion of plaintiff, certain declarations claimed to have been made by Taylor, Jr., to one Samuels out of the presence of plaintiff, concerning the trading of an automobile belonging to Taylor, Jr., for the car in question.
We are satisfied that the ruling of the trial court was correct. The declarations were not admissible under the theory that a fraudulent conspiracy existed between the two Taylors, as contended by appellant, for the reason that before declarations of one conspirator may be competent evidence against his confederate, there must be independent proof tending to establish the conspiracy, and such conspiracy itself cannot be proved as to either of the alleged co-conspirators by the evidence of the declarations of the other. (Barkley v. Copeland,
Neither were the declarations admissible under the theory of agency, for the reason that the agency of Taylor, Jr., ended with the consummation of the purchase of the car, and these declarations were claimed to have been made some time thereafter. Declarations of an agent, with respect to a transaction, made after the completion of the transaction, *410 are not provable against the principal. Such statements are merely hearsay, and, like those of any other person, cannot affect the principal. (1 Ruling Case Law, p. 510.) In this respect it is said: "A rule that would allow an agent, after a transaction is closed, to admit away the rights of his principal, would be too dangerous to be tolerated."
It cannot be successfully contended that the declarations were offered as contradictory statements or for the purpose of impeachment, because the record plainly shows otherwise. The declarations were offered as affirmative proof, the witness who testified to them being called out of order, prior to the time that Taylor, Jr., became a witness in the case.
[5] The final contention of appellant is that there is no legal evidence in the record upon which the award of damages may be based. We are unable to sustain this contention. The measure of plaintiff's damages was the reasonable rental value of the car for the period during which plaintiff was deprived of its use. (Tucker v. Haggerty,
It follows that the admission of such evidence, if error, was harmless.
We are of the opinion that no error has been shown, and therefore the judgment is affirmed.
Tyler, P. J., and Kerrigan, J., concurred. *411
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 28, 1922.
All the Justices present concurred.
Richards, J., pro tem., and Myers, J., pro tem., were acting.
