Rapp v. Fred W. Hauger Motors Co.

KNIGHT, J.

Plaintiff Francis T. Rapp brought this action in claim. and delivery to recover possession of an automobile or its value. He was denied the relief prayed for in his complaint and a judgment for damages in the sum of $1,500 was awarded against him and in favor of defendant J. A. Nougue, from whose possession the automobile in question had been taken and subsequently sold subject to the replevin proceedings. Plaintiff has appealed and urges as. principal ground for reversal that the evidence is insufficient to support the findings or the judgment.

At the time the transactions hereinafter mentioned occurred the corporate defendant Fred W. Hauger Motors Company was handling the San Francisco sales agency for Stearns-Knight automobiles, Fred W. Hauger being the president of said company and conducting the negotiations between the interested parties. Rapp was the owner of a 1920 model touring automobile of the manufacture mentioned and on March 17, 1921, entered into a written contract with the defendant Motors Company for the purchase of a new automobile, a 1921 model of said manufacture, for the sum of $3,125, the Motors Company agreeing to accept Rapp’s old model as a payment of $2,450 on the purchase price. Pursuant to this contract Rapp executed and delivered to the Motors Company a bill of sale of the old model, but pending the arrival and delivery to him of the new one was allowed to use the old model after certain repairs had been made thereto and new tires supplied by the Motors Company. On July 26, 1921, at Hauger’s suggestion, a new arrangement was made whereby title to the old model was retransferred by said Company to Rapp by means of a bill of sale, and thereupon two conditional sales contracts were entered into between the parties. One of them was for the purchase of the old automobile by the Motors Company for the sum of $2,450, the receipt of $1,000 being acknowledged, and the balance of $1,450 made payable in monthly installments of $145 each; the other was for

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the purchase of the new automobile by Rapp for the sum of $3,125, the receipt of $1,000 being acknowledged and the balance made payable in equal monthly installments of $212.50. The new car was delivered to Rapp about September 1, 1921, at which time he surrendered the old one to the Motors Company with the admitted understanding that it was to be sold by said Company. In this connection the conditional sales contract provided that “if the above car is sold by purchaser (Motors Company) balance of purchase price to be due and payable forthwith.” Up to the time the automobiles were exchanged the Motors Company had paid two installments of $145 each on the purchase price of the old one. On September 12, 1921, at Hanger’s request, and in order to facilitate the sale of the old ear, Rapp signed the printed indorsement of transfer of title appearing on the reverse side of the certificate of registration issued by the state motor vehicle department and. delivered said certificate to the Motors Company. Said indorsement was in the following form: “Endorsement of transfer with application for re-registration. The undersigned registered owner of this automobile has transferred to the undersigned buyer, with the consent of the legal owner, his interest therein.” Rapp, also as legal owner, signed the written consent to said transfer. The automobile in question continued to remain in the possession of the Motors Company until October 28, 1921, at which time said Company executed a bill of sale and transferred the possession thereof to the defendant Nougue to secure the payment of a promissory note executed by the Motors Company on September 16, 1921, said note having been secured previously by the pledge of another automobile which the Motors Company had disposed of. During the negotiations between the Motors Company and Nougue, the Motors Company exhibited to Nougue, as evidence of ownership, the indorsed certificate of registration showing the transfer of title to said Company; also the bill of sale of March 17, 1921, from Rapp to said Company. During the following month, November, 1921, Nougue obtained possession of said indorsed certificates and attached his name thereto as second buyer. Upon the delivery of the car to Nougue on September 16, 1921, it was removed by him to his private garage, where it was kept until about December 10, 1921. It was