Lee v. De La Motte

JAMES, J.

Action in claim and delivery for the recovery of possession of a certain automobile or its value, which latter was alleged in the complaint to be the sum of $850, together with damages. Defendants had judgment, from which plaintiff has appealed.

In addition to determining that the plaintiff was neither the owner nor entitled to the possession of the automobile in question, the trial court found that the plaintiff had preliminarily obtained the possession of the automobile through the sheriff, and by the judgment directed that the defendants have possession of the same, or recover the value thereof, which was fixed at the same sum alleged by the plaintiff, to wit, $850. The appellant’s points may be summarized under two heads: (1) That the evidence was insufficient to support the finding against the ownership or right to the possession of the automobile in the plaintiff; (2) that under the pleadings the judgment directing the return of the automobile to the defendants was unauthorized. A consideration of the first point involves an examination of the main facts of the case as shown by the evidence. Necessarily, in considering the findings as made by the trial court, the evidence introduced on behalf of the plaintiff

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must be considered in its strongest light. As defendant De La Motte appears to have been the actual contracting party in the transaction about to be described, we will hereinafter refer to him as the defendant." Defendant Millais, it seems, had possession of the automobile at the time this controversy arose, but her possession was derived from De La Motte and no question is made but that De La Motte was the party responsible to the plaintiff.

On the seventeenth day of November, 1916, plaintiff made a contract of conditional sale whereby he agreed to sell to the defendant a used automobile for the sum of $850. The contract of sale, signed by both parties, acknowledged the receipt of $450 on account, and provided that payments should be subsequently made, to wit: seventy-five dollars on December 17, 1916, and sixty-five dollars on the seventeenth day of each of the five months immediately following. It was provided that interest at the rate of eight per cent per annum should be paid by the vendee. In conjunction with this contract, promissory notes covering the deferred payments and corresponding to the terms of the contract as to amounts and due dates were made. As a matter of fact, the initial payment of $450, which the contract acknowledged, was not a cash payment, but was a credit which the plaintiff agreed to allow in consideration of the delivery to him by defendant of another used automobile. In other words, the transaction took the form of a partial exchange of automobiles. As a part of the transaction, however, an additional agreement was made, evidenced by the following written term: “Studebaker car [that being the car delivered by the defendant to the plaintiff], to be held for 30 days at a price to net purchaser $650, if not sold in 30 days purchaser has option to buy Studebaker for $500 plus repairs put on it.” The automobile received from the defendant was not sold within the thirty days by the plaintiff, but was sold on the sixth day of January,, 1917, for the sum of $750. Prior to this time, and while the machine was in the hands of the plaintiff, extensive repairs had been made upon it. The installment which fell due on December 17th of seventy-five dollars, by the terms of the contract as hereinbefore stated, was paid by the defendant. The installment due on January 17, 1917, which, as will be noted, was ten days after the automobile delivered by the defendant to the plain