Babson v. Salisbury

SHAW, J.

This action grows out of the following facts: Guy H. Campbell, as the owner of an automobile, left it with A. M. MacKusick, a dealer in used motor cars, with instructions to sell same for five hundred dollars. MacKusick entered into a contract with Reese Brothers for a

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lease and conditional sale of the car, subject to payments therefor, the former retaining title and possession thereof. A few days thereafter he sold and assigned this contract to plaintiff S. E. Babson and at the same time made and delivered to him a bill of sale transferring title to the car, possession of which was retained by the seller. Two or three days after this last transaction, and while the automobile was in MacKusick’s garage,' Campbell, while MacKusick was away, took it therefrom and sold and delivered it to defendant Salisbury. Thereupon plaintiff brought this action in claim and delivery to recover possession of the ■ automobile. Judgment went in favor- of defendant, from which plaintiff appeals on the judgment-roll, claiming the judgment is not supported by the findings.

The court, in effect, found that MacKusick’s relation to Campbell was that of a factor; that the contract made by MacKusick with Reese Brothers was null, void, and ineffectual for any purpose; that MacKusick, by a bill of sale duly executed and for a consideration of $315, sold and transferred title to the automobile to plaintiff, who had no notice of the fact that Campbell was the owner of the car; that at no time was delivery of the automobile made to Babson, but the same was retained by MacKusick, who was offering the same for sale up to January 3d, on which day, in MacKusick’s absence, Campbell took the car from the garage and sold and delivered it to defendant, who, as to the former transactions, was an innocent purchaser thereof; that on January 17th, Babson, in proper proceedings therefor, caused the sheriff to take the car from Salisbury, who thereafter regained possession by filing with the sheriff the undertaking required by section 514 of the Code of Civil Procedure, and causing the sureties to justify on such undertaking, in which he employed an attorney to whom he paid the snm of twenty-five dollars, which was a reasonable sum for the service; that defendant was deprived of the use of the car from January 17th to January 20th. to his damage in the sum of twenty dollars.