First National Bank v. Chambers

[883]

PATROSSO, J.

Action to recover possession of an automobile or in the alternative the value thereof. Plaintiff recovered judgment as prayed, and defendant appeals.

Plaintiff's complaint alleges that defendant, Georgia Cham- " bers (hereinafter referred to as defendant), is the owner of the Lincoln automobile therein described; that she executed and delivered to plaintiff a promissory note in the sum of $1,194.32, together with a chattel mortgage upon said automobile securing the same; that defendant defaulted in the payment of said note, whereupon plaintiff demanded possession of said automobile, which was refused by defendant. The prayer is for the possession of the automobile or the sum of $610, the balance alleged due upon the note. Defendant’s answer consists of a general denial, except that defendant admits that she executed a note and chattel mortgage upon the automobile in question; that all sums due thereon had been paid except $100, which defendant had tendered to plaintiff and the latter had refused to accept, as a result of which it is alleged the note was discharged pursuant to the provisions of section 1485 of the Civil Code.

There is no dispute with respect to the facts of the case. On July 11, 1952, defendant borrowed $1,194 from plaintiff, executing her note therefor, together with a chattel mortgage upon the automobile in question. On January 9, 1953, at which time there was a balance due on this note of $610 defendant’s husband arranged a new loan with plaintiff in the sum of $1,000, and thereafter delivered to plaintiff a promissory note therefor together with a chattel mortgage securing the same upon the automobile, each of which purported to be signed by defendant, but to which her name had been signed without her knowledge or consent. It was stipulated that if the defendant was bound by these forged instruments, the balance due was $610, but if not, the balance remaining due upon the original note and chattel mortgage executed by defendant was only $100. The defendant did not obtain any knowledge of the forgeries mentioned until April, 1953, when she was advised of this fact by a representative of the plaintiff. As a result of this conversation, however, defendant wrote a letter to the plaintiff, wherein she stated, among other things: “I agree to assume the $610 debt against the ear.”