Roullard v. Gray

LENNON, P. J.

This is an action for the recovery of a part of the purchase price of an automobile, brought by the assignee of the vendor. The defendant denied the purchase of the automobile. The trial court rendered judgment for the

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plaintiff and defendant appeals. The appellant sets ont numerous alleged errors of law in the admission of testimony, etc., and also contends that the evidence does not support the findings or the judgment.

The evidence shows that the automobile was sold by the plaintiff’s assignor to Hazel I. Gray, then the wife of the defendant herein; that an old automobile, the property of the defendant, was traded in at a valuation of $450, a payment of five hundred dollars was made by check drawn upon the account of defendant and signed “Donly C. Gray by Hazel I. Gray,” and the personal note of Hazel I. Gray was given for the balance. The defendant, Donly C. Gray, was not present during the transaction, and the account was carried upon the books of the vendor in the name of Hazel I. Gray. The bank paid the cheek drawn on the defendant’s account for a part of the purchase price of the automobile and defendant did not object to this signature; he did not repudiate the transaction nor seek to recover his old car, which had been exchanged for the^new one; he used the new automobile to some extent and paid for repairs upon it. Shortly after the purchase of the machine, Hazel I. Gray commenced suit for divorce against the defendant, and in that action the defendant filed a verified answer alleging that the automobile in question was his separate property.

It is true the evidence is conflicting as to the general authority given by defendant to Hazel I. Gray, to transact his business affairs during his absence, and the fact that the account was' carried on the books of the company in the name of Hazel I. Gray is rather strong evidence that the company looked to her for payment. Yet we think the record does furnish sufficient evidence of defendant’s acceptance of the entire transaction to sustain the findings and the judgment.'

Appellant also urges that the respondent had no legal.right to maintain this action and was not entitled to a judgment herein without having proven that prior to the commencement of this action, or at least prior to the filing of the original answer herein, his assignor had; complied with sections 2466 and 2468 of the Civil Code of this state. Section 2466 requires a certificate to be filed by persons doing business in the state under a fictitious name, and provides for the publication of such certificate. Section 2468 provides: “. . . No person