128 Minn. 349 | Minn. | 1915
Plaintiffs brought this action to recover possession of an automobile which they claimed to own. Defendant answered that he was the owner, having obtained it from plaintiffs under a contract by which he traded 60 shares of stock in a creamery corporation for the car. Plaintiffs had a verdict, and defendant appeals from the-order denying a new trial.
The record discloses this situation: Plaintiffs, father and son, lived at Milaca, and, at the time of this transaction, were in the: automobile business selling and trading cars. A. C. Wilkes, the father, had previously been associated with one Smith. How the-son Lloyd came to enter the firm, or have any interest in the car involved, does not appear from plaintiffs’ testimony. A. C. Wilkes bought and paid for it in the first instance. In the summer of 1913, A. C. Wilkes met defendant, and, about the time the present trade-was made, there was concluded between them a real estate deal in which 90 shares of creamery stock figured. The real estate transaction had no connection with the automobile deal, but some disagreement therein seems to have furnished the occasion for this lawsuit. On September 17, 1913, A. C. Wilkes and defendant met in Minneapolis to negotiate this trade of the automobile for the 60 shares of stock in the creamery. They came to terms, and repaired to an attorney’s office to execute the contract. The contract was prepared consisting of typewritten duplicates, plaintiffs being named therein as parties of the first part, and defendant as party of the second part. The contract reads: “Said party of the first part agrees and does hereby sell, assign, transfer and set over unto said party
The court instructed the jury, in substance, that plaintiffs were entitled to a verdict if they proved an understanding or agreement that the contract was not to take effect until it was signed by Lloyd Wilkes. At the trial and on the motion for a new trial defendant raised the objection that the evidence does not show a conditional delivery of the contract, that under any view of the case the action does not lie because as a matter of law the title of A. C. Wilkes passed to defendant, and that there is no evidence to support a verdict under the law as above stated. The assignments of error here present the same question.
The trial court instructed in harmony with the law of this state. “And any one who executes a contract may protect himself from liability thereon by affirmatively showing an express agreement that there should be no delivery until others executed it.” Naylor v. Stene, 96 Minn. 57, 104 N. W. 685. But in this case there is an utter absence of any testimony that the contract should take effect only upon Lloyd signing it. Undoubtedly there was a delivery of the contract as between defendant and A. C. Wilkes. Not a word was at that time said about any other signature. Nor do either A. C. Wilkes or Lloyd claim that the subject was thereafter mentioned. The duplicate given to defendant contained no place for Lloyd’s signature. Lloyd knew about the trade, read the contract Saturday, made no objection thereto, turned over the car to defendant without any expressed condition or reservation, and testified that he approved what trade his father made. Secret intentions of the plaintiffs as regards the signatures to the contract, or the delivery thereof, or of the car cannot now avail them. What is more, the admitted acts of plaintiffs disprove the claims that the contract was not to be deemed complete until Lloyd’s signature, and that the deal was to be closed in the bank on Monday, for Lloyd did not come to Minneapolis either Monday or Tuesday, his name was never signed to the duplicate A. C. Wilkes had, nor was a $4,500 promissory note bearing Lloyd’s signature brought down. Without
Let it be assumed that Lloyd was part owner of the automobile and that his interest did not pass, still, if defendant by the contract acquired the interest of A. O. Wilkes, this action in replevin does not lie. Sheldon v. Brown, 72 Minn. 496, 75 N. W. 709; Busch v. Nester, 70 Mich. 525, 38 N. W. 458. Johnson v. Stone, 111 Minn.
It is also urged that the contract is void because indefinite and uncertain. It is clear and certain as to the automobile and the creamery stock, the exchange of which was the main object of the parties. The agreement in respect to defendant lending his name to carry the indebtedness to which the 60 shares of creamery stock was subject may be somewhat vague. But even so, its purpose is stated with sufficient clearness to enable the parties to comply with the provisions thereof, especially when considered in connection with surrounding circumstances.
We see no merit in the contention of plaintiffs that defendant has failed to perform. A fair construction of the provision just referred to, and above set out in liaec verba, indicates that plaintiffs were to take the first step by presenting the note for defendant to indorse. Then it was up to him to see that the bank accepted it and continued the credit.
Since a new trial must result it is not necessary to consider other assigned errors not likely to again arise.
Order reversed.