Manor v. Dunfield

BURNETT, J.

One F. E. Partain entered into a contract with one C. L. Sanders for the purchase of a Ford automobile. Afterward by agreement a Rambler machine was substituted

[558]

for the Ford. There is no doubt that the said Sanders was the owner of the Ford, and there is sufficient circumstantial evidence that he was also the owner of the Rambler, although the direct evidence is to the effect that the latter belonged to the Sanders Brothers. This is of no importance, however, as it is indisputable that both G. L. Sanders and the Sanders Brothers agreed to the substitution of one machine for the other. The Ford machine was delivered to Partain, but, on account of his failure to meet the payments called for by the contract of sale, G. L. Sanders again took possession of it. Partain and plaintiff then entered into an agreement whereby the latter was to pay Sanders what was due, and the machine was to be turned over to plaintiff and used by him on his auto-stage line. It was further agreed that the machine was to be restored to Partain whenever he repaid plaintiff the amount of money so advanced to Sanders. Plaintiff then made arrangements with G. L. Sanders to pay him the amount due, the sum of $108.40, Sanders understanding that the machine was to be turned over to plaintiff. There was some question as to the form of the receipt offered by Sanders, so he was informed that the money was in the bank and he could get it when he gave a proper receipt. Before the payment was made plaintiff was injured and was thereafter in a sanatorium for some time. While there he had his brother pay Sanders $133.40, the amount due at that time on the machine. This payment was made on September 11th. On September 15th Partain, who was working for plaintiff, driving his automobiles on his stage line, traded said Ford machine for the Rambler. Plaintiff knew nothing of this until the 1st of October, when Partain brought it to plaintiff’s house and turned it over to him. From the time of the trade or substitution of one machine for the other, the Rambler was used on plaintiff’s auto-stage line, driven by plaintiff’s drivers, and had on it his stage sign and license number. Furthermore, it was stored in a garage in Colusa in the name of and by plaintiff, and bills against the same were charged to him and he had possession of the machine until November 13, 1916. On November 1st Partain quit working for plaintiff, and the Rambler remained in possession of the latter. On November 11th plaintiff met G. L. Sanders and said to him that he had the money for the November payment on the machine, but that he had some money coming in the following