A. C. Nelsen Auto Sales v. Turner, 47629

• Decision Date: 19 September 1950
• Docket Number: No. 47629,47629
• Citation: 44 N.W.2d 36,241 Iowa 927
• Parties: A. C. NELSEN AUTO SALES, Inc. v. TURNER.
• Court: Iowa Supreme Court

Page 36

44 N.W.2d 36

241 Iowa 927

A. C. NELSEN AUTO SALES, Inc. v. TURNER.

No. 47629.

Supreme Court of Iowa.

Sept. 19, 1950.

Kimball, Peterson, Smith & Peterson, Council Bluffs, and Frank P. Brennan, Avoca, for appellant.

Joe W. Turner, Avoca, for appellee.

MANTZ, Justice.

Plaintiff's suit is in replevin to secure possession of a certain Packard automobile which it claims to have purchased from an agent of defendant, alleging that it is an innocent purchaser thereof and that defendant is estopped to dispute such claim. This claim of plaintiff is denied by the defendant who alleges that the purported sale to plaintiff was ineffective to divest the defendant of his title in and to said vehicle. The court tried the case without a jury and found for the defendant. Plaintiff appeals.

1. There is little dispute as to the facts in this case. In its finding of fact, the trial court made the following statement: 'The court believes that there is no substantial dispute in the evidence with reference to any of the material facts in this case and its decision must rest upon an interpretation of the law and an application of the law of the facts.'

From the record we will set out certain pertinent facts. Defendant owned a Packard car and wanted to sell it. He contacted the Zip Sales Co., a used car dealer in Council Bluffs, Iowa, and in company with its salesman, one O'Brien, drove to Omaha, Nebraska to contact a certain prospective buyer. There, pursuant to agreement between defendant and O'Brien, the latter took the car with its transfer, or registration certificate, endorsed in blank, to make a sale, the defendant remaining behind. O'Brien at once drove to the place of business in Omaha of plaintiff, a used car dealer, and represented himself as defendant (Turner) and as such sold the car for $2500. He was paid $2182. in cash and then turned over to plaintiff the car, its keys, a bill of sale, and the transfer certificate. He then departed for parts unknown. Defendant awaited his return for several hours, then reported the car as being stolen. The Omaha police found it parked on the street on the following day and turned it over to defendant who took it back to his home in Oakland, Iowa and has retained possession of it since that time.

Later in the opinion we will set out some of the record facts more in detail.

In its finding of fact, the court deals to some extent with the effect of the registration card when the deal was made wherein plaintiff purchased the Packard automobile. In such connection the trial court stated: '* * * that at the time of placing said automobile in the hands of Frank O'Brien, the defendant, L. H. Turner, signed the back of the registration card on the line which is required to be signed by the owner for the purpose of making transfer of the registration. That said signature was not acknowledged before a Notary Public at the time the transfer card was handed to Frank O'Brien. Although the court is of the opinion that these matters are immaterial to the decision of the issues in this case, it is further shown by the proofs of the defendant that the signature was placed on the registration card or transfer card to avoid confusion when the purchaser signed the acknowledgment of the transfer and that said transfer card was to be returned for acknowledgment by the defendant before a Notary Public.'

While the trial court dealt with such matter to some extent, we think that its holding in essence was that the purported sale did not divest defendant of his title; that the claim of estoppel against defendant would not lie, and that plaintiff had not shown itself to be an innocent purchaser.

11. Replevin is tried as a law action. The appeal deals with claimed errors. In this case the jury was waived and the issues were tried to the court. The finding of the court, if supported by competent evidence, has the same force and effect as a verdict of the jury, and will not be disturbed on appeal where the evidences and all proper inferences therefrom, fairly considered, support it. Nelson v. Fisch, Iowa, 39 N.W.2d 594; Crouse v. Cadwell Transfer & Storage Co., et al., 226 Iowa 1083, 285 N.W. 623; Clark v. Krogh, 225 Iowa 479, 280 N.W. 635; Hockert v. New York Life Ins. Co., 224 Iowa 789, 276 N.W. 422; Murphy v. Callan, 199 Iowa 216, 199 N.W. 981.

In this opinion we will not attempt to follow the order of presentation as set forth in the briefs of the respective parties.

III. The first error presented by plaintiff is the action of the court permitting defendant to file 'further amendment to petition', and in overruling plaintiff's motion to strike the same.

Plaintiff claims that the allowing of such amendment violated Rules of Civil Procedure, Nos. 101 and 88. Rule 88 relates to amendments to pleading and when allowed; Rule 101 relates to pleading special defenses.

The plaintiff's claim is that the amendment changed the issue in raising a special defense to plaintiff's petition. The trial court permitted the amendment and refused to strike it. We do not think the court erred in so ruling. Defendant, in his original answer to the petition of plaintiff, among other allegations stated: 'The defendant denies the allegations of paragraph 4 of plaintiff's petition and shows that if any transfer was made as alleged therein that the same was false, fraudulent and void.'

The amendment in effect alleged that defendant had turned his automobile over to Frank O'Brien of the Zip Sales Co. for the purpose only of consummating a sale with a certain represented prospective purchaser, the name or address of which was not known to defendant. The court in ruling on said motion to strike called attention to the time the various pleadings had been filed and the proceedings thereunder and stated that 'the court feels that the amendment so offered conforms to the proof as heretofore offered and the theory on which this case has heretofore been tried and presented. * * * That if the plaintiff feels that he has by reason thereof been taken by surprise and wants additional time in which to meet the tendered issue by the amendment this case is being tried to a judge, with a jury waived, and additional time may be given and a continuance had for the purpose of further attacking the testimony in this matter so that the plaintiff cannot complain that advantage has been taken of any element of surprise.'

In said ruling the court said: 'In the trial of the case, apparently the theory has been that the plaintiff purchased through an imposter as the agent of the defendant Turner, and nearly all of the matters as the court concludes therefrom pleaded by the defendant in his answer have already been offered in evidence in plaintiff's main case.'

In the case of Terpstra v. Schinkel, 235 Iowa 547, 17 N.W.2d 106, this court had before it the application of Rule 88, R.C.P. We there held that this rule was drawn to perpetuate the authority of the trial court in the liberal allowance of amendments. See also Elson v. Nickles, 240 Iowa 292, 36 N.W.2d 343; Jarozewski v. Allen, 117 Iowa 632, 91 N.W. 941.

This court has frequently held that the allowance of amendments to pleadings is addressed largely to the discretion of the trial court. Clough v. Adams, 71 Iowa 17, 22 N.W. 10; Cole v. Laird, 121 Iowa 146, 96 N.W. 744; Dumont v. Peet, 152 Iowa 524, 132 N.W. 955; Jensen v. Booth Motor Co., 234 Iowa 694, 13 N.W.2d 681.

According to the finding of the trial court the parties litigated along the lines suggested by the amendment. We do not think the court abused its discretion in permitting it to stand.

IV. Five other errors are urged by the plaintiff in support of its claim. Such claimed errors have been designated II, III, IV, V, VI, VII. In respect to said claimed errors plaintiff states all are closely related propositions of law and plaintiff elects to submit them in one division.

We will set out the substance of said claimed errors.

Error II. The court erred in holding that a bona fide purchaser was not protected in his purchase where the true owner turns over possession of his automobile accompanied by an indicia of ownership with authority to sell the same.

Error III. The court erred in holding that when the true owner thus turns to another an automobile for sale and a sale is made, the true owner is not estopped to claim that the sale was ineffective.

Errors IV and V are in substance the same as error III, that the court erred in holding that the plaintiff was not estopped to claim that a sale thus made was not effective.

Error VI. When one of two innocent persons must suffer by the act of a third person, he who put it in the power of the third person to inflict the injury must bear the loss.

Error VII. The owner of tangible personal property (automobile) who knowingly or voluntarily permits another to have possession of the automobile and certificate or other evidences of title, and who endorses same in blank, or otherwise, showing ownership in the possessor, is estopped to deny the latter's authority to sell, or otherwise deal with the property.'

The claimed errors as set forth by plaintiff present three questions for determination.

First: Was there a valid sale of the Packard car by O'Brien (Turner) to the plaintiff?

Second: Was the plaintiff an innocent purchaser in such purported sale and entitled to be protected as such?

Third: Was the defendant estopped to question such purported sale?

V. The determination of the above questions requires a rather detailed review of the evidence. We will set out from the record certain facts bearing directly on the matter in issue-- portions will be in narrative form--parts being quotations from the record.

L. H. Turner, defendant-appellee, lived in Oakland, Iowa. He was engaged in the insurance business. On September 23, 1948, he owned a Packard sedan, 1948 model, licensed to him in Pottawattamie County, Iowa, on May 1, 1948. He had decided to sell it and for that...