Davenport v. Alexander

JAMES, J.

This action was one of claim and delivery. The plaintiff was awarded judgment, from which defendant W. E. Alexander appeals.

The property involved was a certain automobile which at the time the action was instituted was in the possession of appellant. The machine had been purchased and used by one Barkow, who, at the time of the making of the purchase, was employed as a salesman by the corporation of which appellant was the president. In April, 1919, he desired to purchase an automobile different from the one which he was then using and made an arrangement with the appellant to advance necessary money with which to complete the desired purchase. A written agreement was executed by appellant and Barkow wherein it was set forth that appellant had advanced the sum of $720 on account of the purchase of the automobile and that, there being a balance of $800 due to the vendor of the machine, payable in monthly installments, appellant should advance the amount of such installments. In the agreement it was set forth that Barkow, as soon as the automobile had been fully paid for with appellant’s money, would execute a chattel mortgage in favor of the appellant to secure the latter for the money advanced, or would deliver the automobile to the appellant to be held by him until the money was repaid. The agreement, among other things, recited: “It being understood and agreed between the parties hereto, that said first party is to have a lien on said automobile for the sums so advanced by him, until the same has been repaid to him by said second party, and that the same is to be evidenced either by a

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chattel mortgage, or by a delivery of said automobile by said second party.” It was further set forth that Barkow agreed that in the event he should leave his employment with the appellant, or should be discharged from such employment, appellant should be entitled to have the automobile delivered to him to be held until the money advanced on account of its purchase had been repaid, or, at the option of appellant, appellant should have the privilege of paying whatever balance there might be due to the vendor of the machine and then accept a note and chattel mortgage as security for the debt. Upon making the purchase of the machine in question Barkow turned in for credit the old machine which he had been using at an allowed sum of $400. Appellant advanced in the first instance $322.30 and further advanced various installments of $50 as they became due for the months commencing with May, 1919, up to the time when this controversy arose, which was at the end of that year. In November, 1919, Barkow, acting, as the evidence plainly shows, in bad faith toward appellant, attempted to transfer his interest in the machine to the plaintiff. It appears that he owed the plaintiff $900. He at first thought of giving plaintiff a chattel mortgage, but having learned that by the conditional sale contract under which the automobile was being purchased the title remained in the vendor, and that he could not legally mortgage the same, he executed a bill of sale in favor of plaintiff and attempted to deliver possession of the automobile thereunder. We may here call attention to the fact, assuming that Barkow had such an interest in the automobile as might be transferred by bill of sale, the attempted transfer was not accompanied by such a change of possession as is required under the provisions of section 3440 of the Civil Code. Under that law a transfer of personal property is ineffectual and void against creditors where it is not “accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things transferred.” There is not the smallest dispute made by the evidence, but that Barkow, after the attempted transfer, continued to have the use of the automobile. He testified that he had the agreement with the plaintiff that he might use it as he needed it, whenever it was necessary in his work as a salesman; that he had used the car subsequent to the alleged transfer, and