Hill v. Fowble

California Court of Appeal Jun 21, 1944 No. Civ. No. 3305Published

Before: Marks

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Holding. The court held that the trial court's finding that Fowble remained the owner of the vehicle at the time of the accident was supported by sufficient evidence, as the initial contract of sale was never fully consummated and the parties' subsequent conduct indicated title had not passed.

Issues

Whether the trial court erred in finding that Fowble, rather than Pearson, was the owner of the vehicle at the time of the accident.
Whether the initial contract of sale was fully executed prior to the accident.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It seems clear to us, as it did to the trial court, that the contract of November, 1941, was never fully consummated by the parties.”

“The sale was completed under the second contract executed after the accident and not under the first.”

MARKS, J. —There are two appeals from a judgment in favor of plaintiff against Dorothy Boyer Fowble in the sum of $10,000, and James R. Fowble, Jr., in the sum of $5,000, and in favor of Carl L. Whittenton and Glenn Pearson, co-partners, doing business under the firm name of Pearson Motor Company, which we will refer to as Pearson, as we will refer to Dorothy Boyer Fowble as Miss Boyer. At the time of the accident here involved, Dorothy Boyer was engaged to James R. Fowble, Jr., and they were married shortly thereafter.

[27]The action grew out of a collision between an automobile being driven by Miss Boyer and one in which plaintiff was riding. No question is raised as to the negligence of Miss Boyer nor to the amount of damages awarded.

The appeal of the plaintiff is from the portion of the judgment in favor of Pearson and is precautionary. Plaintiff states that she is satisfied with the present judgment, but if the judgment against Fowble should be reversed the portion thereof in favor of Pearson should be reversed so that its liability could be determined at a second trial.

Miss Boyer was driving a 1941 Ford at the time of the accident. It was owned either by Fowble or Pearson. She was driving it with the consent of the owner so the important question argued and to be decided is which one of these two defendants was the owner of the car on December 14, 1941, the date of the accident.

In October, 1941, Fowble was the owner of the Ford and desired to trade it in on a 1942 model. He and Miss Boyer went to the place of business of Pearson and discussed a trade. Fowble had to make a business trip east and desired to take delivery of the new ear at Dearborn. The agent of Pearson was not certain of being able to make such delivery nor of being able to get the necessary priority for the sale.

Before Fowble left on his trip he gave Miss Boyer authority to determine the color of the new car, its upholstery and other such details. He left the 1941 Ford with her to use during his absence. There is no argument made that she was acting as his agent in driving the car at the time of the accident. Miss Boyer carried on certain negotiations for the purchase of the new car after Fowble left.

Pearson obtained the priority for the purchase of the new car and learned that delivery could be made in Dearborn. A purchase order was prepared for the new car which was delivered to Miss Boyer with a bill of sale which was entirely in blank. The purchase order was dated November 19, 1941, and stated the price of the new car at $1,395.78, trade in value of the 1941 Ford at $1180, and that the balance was to be paid under a conditional sales contract.

Hill v. Fowble

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