Fletcher v. Commercial Discount Co.

FINCH, P. J.

The plaintiff brought this action to recover possession of an automobile or its value. Judgment was entered in favor of the defendant Commercial Discount Company for the possession of the automobile and in favor of the plaintiff against the defendant Hollywood Harmon Company for the value thereof. The plaintiff has appealed from the judgment.

It was stipulated at the trial that on April 5, 1927, the Hollywood Harmon Company was “a motor vehicle dealer, . . . dealing particularly in Harmon automobiles ’

’;

that on that day the plaintiff “ordered from said Hollywood Harmon Company a certain five-passenger . . . automobile : . . for the sum of $4,405” and delivered to that company a 1925 Harmon sedan “as part payment in the sum of $2,250”; that on April 13, 1927, the plaintiff paid the balance of the purchase price and was given a memorandum of sale of the automobile, stating the motor number and other particulars to identify the machine; that the plaintiff

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never took possession of the automobile, “nor was there ever any actual or continuous change of possession of said automobile between the Hollywood Marmon Company and the plaintiff”; that the plaintiff “did not record any bill of sale or other indicia of ownership” or cause the automobile to be registered in the Motor Vehicle Department of the state; that “on April 21, 1927, and while said new automobile was then and there in the possession of the Hollywood Marmon Company, it sold and conveyed said new automobile and the title thereto to the defendant Commercial Discount Company, which thereupon entered into a conditional contract of sale . . . with said Hollywood Marmon Company; . . . that then and there and as a part of the same transaction, the defendant Commercial Discount Company paid to the Hollywood Marmon Company the sum of $2,890 ; that thereupon said Hollywood Marmon Company” caused the automobile to be registered in the Motor Vehicle Department “in the name of the Hollywood Marmon Company, with the legal ownership of said automobile registered in the name of the defendant Commercial Discount Company,” which “received from said Motor Vehicle Department the customary and usual pink certificate of registration”; that the Commercial Discount Company did not “come into the actual possession of said automobile until May 6, 1927,” up to which time the automobile remained in “the physical possession of said Hollywood Marmon Company”; that on said sixth day of May the “Commercial Discount Company took possession of said automobile and removed same from the place of business of the Hollywood Marmon Company”; that before it so removed the automobile “the plaintiff personally demanded of . . . the defendant Commercial Discount Company and of said Hollywood Marmon Company the possession of said new automobile, then and there stating that he was the owner of same.”