280 P. 488 (Colo. 1929), 12352, Brown v. Driverless Car Co.

Docket Nº:12352.
Citation:280 P. 488, 86 Colo. 216
Opinion Judge:ADAMS, J.
Party Name:BROWN v. DRIVERLESS CAR CO.
Attorney:Waldo Riffenburg, of Ft. Collins, for plaintiff in error. [86 Colo. 217] James R. Hoffman and Carlos A. Richardson, both of Denver, for defendant in error.
Judge Panel:WHITFORD, C.J., and ALTER and CAMPBELL, JJ., concur.
Case Date:June 24, 1929
Court:Supreme Court of Colorado
 
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Page 488

280 P. 488 (Colo. 1929)

86 Colo. 216

BROWN

v.

DRIVERLESS CAR CO.

No. 12352.

Supreme Court of Colorado

June 24, 1929

Rehearing Denied Sept. 23, 1929.

Department 1.

Error to Weld County Court; Roy M. Briggs, Judge.

Suit by the Driverless Car Company against Henry Brown. Judgment in favor of plaintiff, and defendant brings error and applies for a supersedeas.

Reversed, with directions.

Page 489

Waldo Riffenburg, of Ft. Collins, for plaintiff in error.

[86 Colo. 217] James R. Hoffman and Carlos A. Richardson, both of Denver, for defendant in error.

ADAMS, J.

The Driverless Car Company, a Colorado corporation, brought replevin against Brown and others, before a justice of the peace in Weld county, to recover possession of an automobile. Judgment was for defendants. Plaintiff (hereinafter called Driverless) appealed to the county court, where trial was had to a jury, with verdict and judgment in its favor. Defendant Brown brings the case here and asks for a supersedeas. The other defendants have dropped out of the scene as parties, but not as witnesses.

The record title to the automobile in question shows the following: June 3, 1927, ownership in Allen E. Thomas, subject to an incumbrance of $241.72 in favor of Driverless Car Company. November 30, 1927, transfer of title, warranted free of all liens, from Allen E. Thomas to E. R. Hopper Motor Company, December 24, 1927. 'Reassignment by licensed dealer to individual,' a transfer of title, warranted free of all liens, from E. R. Hopper Motor Company to Henry I. Brown, the defendant herein.

Plaintiff's chattel mortgage is dated and acknowledged June 3, 1927, and was filed on June 13, 1927, in the office of the county clerk and recorder of the city and county of Denver. There was a balance of $145 due from Thomas to Driverless, represented by the mortgage, at the time the action was commenced. Possession of the car was taken from Brown under the writ of replevin in April, 1928. Plaintiff claims by virtue of the mortgage. Brown claims to be an innocent purchaser for value without actual notice, and that plaintiff consented to a sale of the car. Additional facts will be stated in the opinion.

1. The general rule is that, upon a failure of the [86 Colo. 218] mortgagor of chattels to perform the conditions, the mortgagee may maintain replevin to recover...

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