Hutchinson v. Scott, Magner & Miller

RICHARDS, J.

This is an appeal from a judgment in defendant’s favor in an action for the recovery of the possession of personal property.

Concerning the facts of the case there is no substantial dispute. The plaintiff was the owner of a certain automobile known and designated as a “1915 Hupmobile Roadster,” and which he desired to sell. While on a visit to the east he opened correspondence with a Mr. Llewellyn Johnson regarding the sale of his machine, as a result of which he sent the latter a telegram on September 20, 1915, to the effect that he had instructed the garage to deliver the car to him, as the plaintiff’s agent, for sale at eight hundred dollars cash, no delivery to be made until full price was paid. Johnson re

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eeived the car under this instruction, and within a short while thereafter he made an exchange of it with the defendant for a touring car owned by it, receiving fifty dollars, cash on the trade. On October 22, 1915, Johnson wrote a letter to the plaintiff, who was then in New York City, that he had after some difficulty made a deal by which he had sold the plaintiff’s automobile for four hundred dollars cash and a Hupmobile runabout, which he could sell for the same amount as soon as some repairs were made upon it, and that as soon as sold he would remit the balance of the purchase price. He inclosed in this letter a draft for four hundred dollars which he thus claimed to have received, but did not disclose the name of the purchaser of the plaintiff’s car. Upon receiving this letter the plaintiff replied acknowledging the receipt of the four hundred dollars inclosed and stating that “While I am not entirely satisfied with the sale of the car for less than eight hundred dollars cash, I shall accept the situation if I have both your promise to pay the remaining four hundred dollars to me in cash within the next thirty days, and a credit to me of that amount upon the Linz-Sanborn Motor Company. Please advise me if you can provide me with these assurances.” The Linz-Sanborn Motor Company referred to in this reply was a firm of dealers in automobiles with which the plaintiff had previously been led by Johnson to believe that he was connected in some responsible capacity. Receiving no reply from Johnson the plaintiff returned to San Francisco a few weeks later and began to look the matter up. He saw Johnson and could get ■ no satisfaction from him, either as to whom he had sold the car, or as to the terms of its sale, or as to the payment of the balance of its purchase price; but he learned that Johnson had deceived him with respect to his connection with the Linz-Sanborn Motor Company and that he had no such connection. He finally learned that his car was in the possession of the defendant, who claimed to have purchased it from Johnson. The plaintiff thereupon wrote a letter to the defendant denouncing the acts of Johnson and demanding the return of the car, with damages for its depreciation and retention, and these demands being refused by the defendant the plaintiff instituted the present action.