Tharp v. San Joaquin Valley Securities Co.

BARNARD, P. J. One Ogelsby was engaged in the business of selling Reo automobiles in Porterville and Tulare. The San Joaquin Valley Securities Company, hereinafter called the appellant, was engaged in the business of financing retail dealers in automobiles and had been “flooring” cars for Ogelsby for more than a year and a half. On May 11, 1931, the appellant purchased a Rea automobile and delivered it to Ogelsby, taking back a trust receipt, an agreement of purchase and a promissory note for the balance of the purchase price. It did not cause the automobile to be registered or licensed with the Department of Motor Vehicles, and it was conceded at the trial that the car was delivered to Ogelsby with the intention that he should sell the same in the regular course of business and that the appellant knew that he was demonstrating and attempting' to sell the car.

On July 8, 1931, Ogelsby sold the car to the plaintiff herein on a conditional sales contract, Tharp paying $100 down and agreeing to pay $135.33 monthly until the balance was paid. On July 10, 1931, Ogelsby sold his interest in this contract to the Pacific Finance Corporation, hereinafter called the respondent, receiving full payment therefor. The = respondent sent a notice to Tharp that it had purchased this contract and Tharp acknowledged the notice. On July 8, 1931, Tharp also signed an application to register the car under the provisions of the California Vehicle Act. The car was duly registered showing Tharp as the registered owner and the respondent as the legal owner. The white slip was [22]delivered to Tharp, and he made the payments due in August and September, 1931, to Ogelsby who turned them over to the respondent. The October payment was paid early in November by Tharp directly to the respondent. Ogelsby disappeared some time in October, 1931, and the appellant took possession of the automobile on October 15, 1931, at which time the automobile bearing Ogelsby's license plates, as dealer, was found at his place of business at Porterville.

On October 22, 1931, Tharp brought this action to recover possession of the automobile or its value in case delivery could not be had. The appellant answered, praying that the plaintiff take nothing by reason of his complaint and that it have judgment for recovery and possession of said automobile or for its alleged value in ease delivery could not be had. The respondent intervened, its complaint alleging that Ogelsby was and for several years had been engaged in the business of selling Reo automobiles in the city of Porterville; that the car in question was delivered to his possession for the purpose of having him sell the same; that he exhibited and offered the car for sale; that on July 8, 1931, he sold the car to the plaintiff under a conditional sales contract calling for monthly payments; that Ogelsby retained title until the full amount should be paid; that on July 10, 1931, Ogelsby sold said conditional sales contract and all his right, title and interest in the car to the respondent; that the plaintiff thereafter failed to make the payments due under the terms of the contract; and that the respondent is the owner of said car and entitled to its possession. The prayer was for a judgment against both plaintiff and appellant for the recovery of the possession of the car or for its alleged value in case delivery could not be had. As conclusions of law from the facts found, the court found that the respondent was entitled to judgment for possession of the automobile or for its value in ease delivery could not be had, and the judgment was to the same effect. Prom that judgment this appeal was taken.