Herzer v. Lee

RICHARDS, J.

This is an appeal from a judgment in favor of the plaintiff in an action brought by him to recover possession of an automobile.

As to the facts of the case there is very little, if any, dispute, and they may be briefly summarized as follows: The defendant Lee wished to buy an automobile, and went to one Nelson, a dealer in automobiles, for that purpose. Nelson had such a machine as he wished to buy, the purchase price of which was $962.50. Lee had three hundred dollars in

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cash, which he was ready to apply upon the purchase price, hut desired time and terms for payment of the balance, which Nelson refused to give, insisting upon a cash transaction. Lee thereupon applied to one H. P. Drueke, who maintained an office for loans and investments under the name of Auto Securities Company, for assistance in completing the purchase of the car. Drueke looked over the machine, and agreed that he would finance the transaction for Lee for a commission of $75, to which Lee agreed. Drueke then went to the plaintiff herein Who, while not in any way connected with the Auto Securities Company, was accustomed to loan money in aid of transactions for the purchase of automobiles. It was admitted at the trial that during the year prior to the transaction under review the plaintiff had made as many as five hundred loans of this character through various brokers who, from time to time, applied to him for such loans. Drueke was among the number of these brokers, and he had frequently, though not exclusively, consummated automobile sales through the use of plaintiff’s money. The plaintiff appears to have had confidence in the judgment of Drueke with respect to the value of the security offered in such transactions, but does not otherwise appear to have ever paid him commissions for placing his money nor to have in any way shared in such commissions as Drueke received from time to time in these matters. The plaintiff, having in the present case agreed to furnish the money needed to finance the purchase of the automobile by Lee, the parties, including the plaintiff, the defendants, Nelson and Drueke, met at the office of the latter, whereupon the following proceedings were had: A bill of sale of the car in question from Nelson to Herzer was drawn up and executed by the former upon receipt by him of the sum of three hundred dollars in cash from the defendant Lee, and of the sum of $662.50 in the form of a check from Herzer to Nelson. A contract of conditional sale of the automobile from the plaintiff to the defendants was then executed, which recited that the purchase price to be paid by the defendants to the plaintiff for the car was the sum of $1,037.-50, upon which there was credited the sum of three hundred dollars, and upon the balance of which, namely, the sum of $737.50, the defendants agreed to pay certain monthly installments, and also agreed to pay two per cent per month