Brown v. Driverless Car Co., 12352.

• Decision Date: 24 June 1929
• Docket Number: 12352.
• Citation: 86 Colo. 216,280 P. 488
• Parties: BROWN v. DRIVERLESS CAR CO.
• Court: Colorado Supreme Court

280 P. 488

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.

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

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 mortgagor of chattels to perform the conditions, the mortgagee may maintain replevin to recover possession of the property. Wells on Replevin (2d Ed.) p. 184, § 222a.

2. On the other hand, if the mortgagee consents, expressly or impliedly, that possession of chattels shall be or remain in the mortgagor with power of sale, it makes the mortgage void as to third parties. Wilson v. Voight, 9 Colo. 614, 13 P. 726; McLagan v. Granato, 80 Colo. 412, 414, 252 P. 348; Moore v. Ellison, 82 Colo. 478, 480, 481, 261 P. 461.

There is a striking similarity between the two last named cases and the one before us. All three relate to automobiles; in each instance the record shows that they were covered by chattel mortgages filed or recorded in the office of a county clerk and recorder; and in all of them the cars were purchased after they had been displayed in the show rooms of automobile dealers. Driverless, the mortgagee, slept on its rights while the car in question went through the transition of two sales, first, from Thomas to Hopper, and, second, from Hopper to defendant Brown. The car was a secondhand Ford, which Thomas traded in with Hopper on the price of a new car. Thomas notified Driverless, in the latter part of November, 1927, of his sale or trade of the mortgaged car to Hopper, and Reynolds, manager for Driverless, admits that he consented to the sale. Reynolds further stated that Hopper promised to pay him, and that Thomas was to pay Hopper.

3. The fact that Reynolds consented to the sale to Thomas shortly after such sale, and not before, is immaterial. We do not know whether or not Reynolds gave his express consent to the later sale of the Ford to the defendant Brown, at the time that such sale was made. We may assume that Reynolds did not do so, but he did know that Hopper was a dealer in automobiles, and Driverless, through its manager, Reynolds, was thus charged with notice that Hopper's business, besides that of selling new cars,...