Aircraft Acceptance Corp. v. Jolly, 20458

• Decision Date: 20 October 1967
• Docket Number: No. 1,No. 20458,20458,1
• Citation: 141 Ind.App. 515,230 N.E.2d 446
• Parties: AIRCRAFT ACCEPTANCE CORPORATION, Appellant, v. Lewis E. JOLLY, Appellee
• Court: Indiana Appellate Court

Page 446

230 N.E.2d 446

141 Ind.App. 515

AIRCRAFT ACCEPTANCE CORPORATION, Appellant, v. Lewis E. JOLLY, Appellee.

No. 20458.

Appellate Court of Indiana, In Bank, Division No. 1.

Oct. 20, 1967.

Rehearing Denied Dec. 1, 1967.

Harold E. Ford, Ted R. Todd, Madison, for appellant.

Cooper, Cooper, Cooper & Cox, Madison, for appellee.

COOPER, Judge.

This is an appeal by the Appellant from an adverse judgment in an action in replevin, wherein it sought to recover from the Appellee the possession of a Piper Tri-Pacer airplane.

After the proper issues were joined, the cause was submitted for trial to the Jefferson Circuit Court without a jury. The trial court found for the Appellee and against the Appellant.

After judgment was rendered and entered, the Appellant filed its motion for a new trial averring therein 'that the decision of the Court is contrary to law.' The court overruled the motion and this appeal followed. The assigned error for appeal is the overruling of the motion for a new trial.

In reviewing the record we find the facts in the cause are not particularly in dispute. The parties have stipulated the pertinent facts, and some oral testimony was also given. A condensed recital of the pertinent evidence is as follows.

On and prior to July 15, 1961, the Appellee, Lewis E. Jolly, was the owner of a 1959 Piper Tri-Pacer airplane, Serial No. 22--6909 and on the aforesaid date he delivered the aircraft and a form bill of sale which he had signed in blank, but had not acknowledged before a notary public, to one Ned Bottoms of Indianapolis, Indiana. The bill of sale was in the form prescribed by the Federal Aviation Agency as its form FAA--500 (Part C.) and no information was inserted in the prepared spaces except the Appellee's signature.

The aircraft was delivered to Bottoms under an agreement between Jolly and Bottoms, whereby Bottoms was to sell the plane for Jolly. Bottoms was unable to sell the plane, and on September 1, 1961, the Appellee flew the plane to Akron, Ohio, and placed it in the possession of Arthur C. Wamberg Aircraft Sales, Inc., a Corporation, hereinafter called Aircraft Sales, under a written agreement between Jolly and Aircraft Sales giving Aircraft Sales the right to sell the plane, from the period beginning September 1, 1961, to and including October 1, 1961, for the sum of $5,750.00.

At this time, September 1, 1961, the log books and other documents pertaining to the plane, including the signed form of bill of sale, were still in the possession of Bottoms. Bottoms later sent these papers to Wamberg Aircraft Sales, although Bottoms had no specific authority to deliver the signed form of bill of sale of Aircraft Sales.

It appears that thereafter on September 25, 1961, and without any authority from, or knowledge of the Appellee Jolly, someone connected with Aircraft Sales filled out the blank bill of sale showing Aircraft Sales as purchaser.

A certified copy of this bill of sale is in evidence and contains an acknowledgement purportedly executed by Arthur C. Wamberg, Notary Public, in which he stated that on September 25, 1961, Lewis E. Jolly appeared before him and acknowledged the execution of the bill of sale. The bill of sale was on September 25, 1961, exhibited to an officer of the plaintiff, Aircraft Acceptance Corporation in Columbus, Ohio, and at that time an officer of Aircraft Acceptance Corporation filled in over the signature of Jolly and after the certificate of acknowledgement was executed, a statement that the aircraft was not 'subject to any mortgage or other encumbrance except' a chattel mortgage for $6,470.40 dated September 25, 1961, in favor of Aircraft Acceptance Corporation, Columbus, Ohio.

The evidence shows that Jolly did not acknowledge the bill of sale before Arthur C. Wamberg. The bill of sale in so far as Arthur C. Wamberg Aircraft Sales, Inc., is concerned was fraudulent and the statement inserted by Aircraft Acceptance Corporation as to its chattel mortgage was an alteration.

In other words, the evidence reveals we have a case in which both Arthur C. Wamberg Aircraft Sales Inc., and the Appellant, without any authority whatsoever from the Appellee Jolly that we can find in the record, prepared a written instrument affecting his rights in the aircraft.

A note and mortgage, copies of which are in evidence, were executed on September 25, 1961, by Aircraft Sales to the plaintiff. It also appears from the evidence that the transaction between Aircraft Sales and the plaintiff had been under consideration by them for some ten days.

In passing, it may be said that we recognize that the note secured by the mortgage is a cognovit note outlawed by statute, and in so far as certain of its provisions are concerned, it is illegal in Indiana.

The evidence reveals that Jolly was not advised of this transaction and continued to inquire of Aircraft Sales whether or not a purchaser had been found for the plane, but was unable to get any information. On April 19, 1962, Jolly received a check from Aircraft Sales for $3,000.00 as a down payment on the plane pursuant to a sale Aircraft Sales claimed to have made and was advised that the remainder of the selling price of $5,750.000 would be in the form of the purchaser's note. It appears that the check was negotiated by Jolly but the purchaser's note was never received or accepted by Jolly.

Later, Jolly went to Akron, Ohio, took possession of the plane and...