Associates Discount Corp. v. Bogard

Citation229 La. 389,86 So.2d 76
Decision Date16 January 1956
Docket NumberNo. 41890,41890
PartiesASSOCIATES DISCOUNT CORPORATION v. Roman BOGARD.
CourtSupreme Court of Louisiana

Arthur V. Flotte, New Orleans, for defendant called in warranty and appellant.

Louis G. Shushan, Moise S. Steeg, Jr., New Orleans, for plaintiff-appellee.

Arthur L. Ballin, New Orleans, for defendant-appellee.

HAWTHORNE, Justice.

Associates Discount Corporation brought this suit to have an Illinois conditional sales contract recognized and enforced, the property described in the contract being a 1951 model Buick. Plaintiff prayed that the above automobile be seized under a writ of sequestration, that the car be sold, and that it be paid the amount of its claim, $2,392.82, from the proceeds of the sale by preference and priority over all other persons. The automobile was seized in this state in the possession of Roman Bogard, who called in warranty his vendor, John H. Smit, Jr., doing business as Smit Motor Sales. After trial on the merits the lower court rendered judgment recognizing the Illinois contract and ordering the property sold and petitioner paid pursuant to the prayer of its petition. There was also judgment against the warrantor Smit on Bogard's call in warranty in the sum of $2,450. Only John H. Smit, Jr., warrantor, has appealed.

In November, 1952, the Interstate Auto Distributors of Chicago, Illinois, sold this Buick automobile under a conditional sales contract to a man calling himself Billy Farrell. This conditional sales contract and the promissory notes evidencing the balance due on the purchase price were assigned by the automobile dealer to plaintiff herein, a finance company. Without the knowledge and consent of the plaintiff the car was brought to Louisiana, and in December, 1952, was sold by one representing himself to be Lee Norton to John H. Smit, Jr., doing business as Smit Motor Sales, under a Louisiana certificate of title. Smit subsequently sold this automobile to Roman Bogard, in whose possession it was at the time it was seized by the plaintiff.

In this case plaintiff has proved that the Illinois conditional sales contract here involved is in proper form and valid and enforceable under the laws of that state, that title to an automobile conditionally sold remains in the vendor or its assignee until the contract is fully performed, and that under the laws of Illinois the conditional vendor or its assignee has a superior right in the chattel over an innocent purchaser for value and without notice.

In the recent case of Fisher v. Bullington, 223 La. 368, 65 So.2d 880, 883, this court quoted with approval from Universal C. I. T. Credit Corp. v. Victor Motor Co., La.App., 33 So.2d 703, thus:

"The jurisprudence of this State applicable to conditional sales contracts is now well settled and can be stated thusly: In spite of the fact that conditional sales are invalid when contracted in Louisiana, the Louisiana courts, through comity, have recognized sales executed in other states, even as against a bona fide purchaser or pledgee of the vendee, where the object has been removed to Louisiana without the knowledge or consent of the vendor. Overland Texarkana Co. v. Bickley, 1922, 152 La. 622, 94 So. 138; Finance Security Co. v. Conway, 1933, 176 La. 456, 146 So. 22; Hinton Co. v. Rouse, 1926, 4 La.App. 471; Security Sales Co. of Louisiana v. Blackwell, 1928, 9 La.App. 651, 120 So. 250; State ex rel. Grosjean v. Shurley, La.App., 1936, 165 So. 533." See also General Motors Acceptance Corporation v. Nuss, 195 La. 209, 196 So. 323.

It will thus be seen that Smit never acquired title to the automobile in question, and, having no title, he could convey none to Bogard, in whose custody the Buick was at the time it was seized.

Warrantor contends in this court that the trial judge improperly admitted in evidence the conditional sales contract because it had not been shown that it was signed by Billy Farrell, the conditional vendee named therein. Warrantor argues that the document is not a self-proving one under the laws of this state (Article 2234 of the Louisiana Civil Code and R.S. 13:3720), and accordingly the genuineness of the signature of Billy Farrell had to be proved by witnesses who saw him sign the act or who knew the signature to be his because they had frequently seen him write and sign his name. See Art. 2245, La.Civil Code; Art. 325, La.Code of Practice. In support of this contention warrantor cites our decision in Bass v. Prewett, 225 La. 883, 74 So.2d 150, 151, in which it was said: 'The method of proving the authenticity or genuineness of the signatures to these chattel mortgages is governed by the law of this state, for this is a matter of evidence, and it is well settled that questions of evidence or procedure are governed by the law of the forum.'

There is no merit in the...

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