Taylor v. Bernheim

KNIGHT, J.,

pro tem.

In this action judgment was rendered in favor of plaintiff Verne W. Taylor for the possession of an automobile, or for the sum of $1,000, the value thereof, in the event possession could not be had, and for the further sum of $400 damages against the defendant J. H. Bernheim, for the wrongful detention of said automobile. The defendant Bernheim has appealed.

There are two persons named Taylor involved in this transaction; the plaintiff, Verne W. Taylor, and his son, Verne J. Taylor, and for convenience they will be hereinafter respectively referred to as Taylor, Sr., and Taylor, Jr.

On October 21, 1920, the defendant Bernheim commenced suit against Taylor, Jr., to collect an indebtedness of $1,850, and a writ of attachment was issued and placed in the hands of the defendant Thomas F. Finn, as sheriff, for service. The latter levied the writ upon the automobile in question, which at the time was stored in the name of Taylor, Jr., in a public garage, on Geary Street, in San Francisco. The next day Taylor, Sr., claiming to be the owner of said automobile, presented to and filed with said sheriff a verified third party claim, in the form required by section 689 of the Code of Civil Procedure. The sheriff thereupon, pursuant to said code section, exacted from Bernheim a bond indemnifying him against the claim of ownership asserted by Taylor, Sr. The possession of said automobile was thereafter retained by the sheriff, by virtue of said attachment, and on November 30, 1920, Taylor, Sr., commenced this action, to recover said machine, or its value, and damages for its detention. The main issue before the trial court was the one of the ownership of said automobile, that is, whether it belonged to Taylor, Sr., or to his son, Taylor, Jr.

According to the evidence, Taylor, Sr., who was a traveling salesman, was in need of an automobile for use in his business. On account of his absence from San Francisco he was unable to purchase one personally, and he told his son that if the latter found a suitable machine, to buy it.

[406]

A few days prior to July 20, 1920, Leon Leboire, the former owner of the ear in question, advertised it for sale, and in answer to that advertisement, Taylor, Jr., called upon him for the purpose of examining said car. After some negotiations they came to terms and Taylor, Jr., so reported to his father. The latter thereupon gave his son $1,400 with which to buy the car, of which $800 was in cash and the balance consisted of a check for $600. That check was produced at the trial. Taylor, Jr., deposited the check in his personal account in the bank, and on July 26, 1920, purchased the car, by delivering to Leboire a certified cheek, drawn by himself on his personal account for $1,400. At the request of Taylor, Jr., the bill of sale for the car was made out by Leboire to Taylor, Sr. The car was delivered to Taylor, Jr., and remained in his possession, and was used by him substantially all of the time until it was attached on October 21, 1920. During that period Taylor, Sr., only drove the car on two or three occasions and then around San Francisco and at one time drove it on a hunting trip with his son for a period of about fifteen days. The automobile license certificate accompanying the car was transferred direct from Leboire to Taylor, Sr., but the transfer was not completed until October 8, 1920.