Financial Ins. Corp. v. Brockton

HOUSER, J.

This appeal relates to the ownership of an automobile which, so far as is here involved, originally belonged to a distributing company known as Don C. Smith, Incorporated. On June 20, 1924, the Sunset Moon Company, which was a dealer in automobiles, without being the owner or in possession of the automobile in question, entered into a conditional sale contract of the automobile with Brock-ton, one of the defendants herein. On the same day the Sunset Moon Company assigned its interest in the conditional sale contract to Financial Insurance Corporation, a corporation, the plaintiff herein. On application made to the division of motor vehicles by the Financial Insurance Corporation,

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accompanied by a report of sale of the automobile by the Sunset Moon Company, the division of motor vehicles issued its certificate of ownership of the automobile to Financial Insurance Corporation and Brockton. Four days later, to wit, on November 24th, the Sunset Moon Company orally agreed with the A. I. Lasker Corporation (one of the defendants herein) to the effect that the latter corporation purchase the automobile for cash from Don C. Smith, Incorporated (which latter corporation before that time had never parted with either the ownership or the possession of the automobile), and that thereupon the Sunset Moon Company would purchase it on a conditional sale contract from the A. I. Lasker Corporation—which agreement was carried out and the automobile was first delivered by Don C. Smith, Incorporated, into the possession of the Lasker Corporation, which latter corporation thereupon delivered it to the Sunset Moon Company, and which last-named company in turn delivered it to Brockton. On the same day an application for certificate of ownership of the automobile was made to the division of motor vehicles by the Lasker Corporation, accompanied by a report of sale of same by Don C. Smith, Incorporated—the result being that a certificate of ownership was also issued by the division of motor vehicles to the Lasker Corporation. Brockton having failed to make payment for the automobile as provided in the conditional sale contract entered into between him and the Sunset Moon Company, which contract had been assigned to the plaintiff, Financial Insurance Corporation, an action in claim and delivery was brought by the latter corporation against Brockton and various fictitious defendants for the recovery of the automobile; or, in the" event that its delivery could not be had, for its value. The Lasker Corporation answered the complaint as one of the fictitious defendants named therein. On the trial it was stipulated that on the commencement of the action, under process issued by authority of the court, the Financial Insurance Corporation had taken possession of the automobile, sold it to someone not a party to the action, and that the value of the automobile was $1,200. Judgment was rendered in favor of defendant Lasker Corporation and against the plaintiff Financial Insurance Corporation for the sum of $1,200, and the appeal herein is from such judgment.