Dransfield v. Boone-Armstrong Motor Co.
| Decision Date | 19 October 1926 |
| Docket Number | 5399. |
| Citation | 135 S.E. 286,102 W.Va. 370 |
| Parties | DRANSFIELD v. BOONE-ARMSTRONG MOTOR CO. et al. |
| Court | West Virginia Supreme Court |
Submitted October 12, 1926.
Syllabus by the Court.
Section 9, c. 99A, Code, declaring void under certain conditions the reservation of property under a conditional sale contract applied.
Error not specified on a motion for a new trial, and not made the subject of a special bill of exceptions, will be treated as waived. Pt. 1, Syl., Gregory's Adm'r v. Ohio River R. Co., 37 W.Va. 606, 16 S.E. 819.
Error to Circuit Court, Greenbrier County.
Action by George Dransfield against the Boone-Armstrong Motor Company and others. Judgment for plaintiff, and defendants bring error. Affirmed.
H. W Bowers, of Charleston, for plaintiffs in error.
J. S McWhorter, of Lewisburg, and Koontz, Hurlbutt & Revercomb, of Charleston, for defendant in error.
This case is here on error from a judgment of the circuit court of Greenbrier county awarding the plaintiff $1,095.
On July 9, 1923, the Boone-Armstrong Motor Company, which was the general state distributor of the Gardner automobile, appointed the Greenbrier Motor Sales Company a local agent for that automobile.
On August 4, 1923, the Boone Company sold the Greenbrier Company two Gardner cars, under what is commonly called a "conditional sales contract," whereby the title of the cars was reserved in the former until the latter should complete payment therefor, and which specified that the contract should not be assigned without the written consent of the Boone Company. The reservation of title was recorded August 17, 1923. A few days afterwards the Greenbrier Company sold one of these cars to George Dransfield for $1,095, at which time there was a balance of $361.99 due and unpaid on the contract with the Boone Company. When payment of this balance was not promptly made, the Boone Company seized and has retained the plaintiff's car. On December 18, 1923, the Greenbrier Company gave Dransfield its note for $1,095, which has never been paid. Shortly afterwards Dransfield instituted this suit to recover the value of his car.
The plaintiff bases his right of recovery on the theory that the cars were sold by the Boone Company to the Greenbrier Company for resale, and the transaction is therefore governed by section 9, c. 99A, Code, which is:
"When goods are delivered under a conditional sale contract and the seller expressly or impliedly consents that the buyer may resell them prior to performance of the condition, the reservation of property shall be void against purchasers from the buyer for value in the ordinary course of business, and as to them the buyer shall be deemed the owner of the goods, even though the contract or a copy thereof shall be recorded according to the provisions of this act."
The defendant claims that its seizure of the car under its conditional sales contract was permissible by reason of sections 3 and 16, c. 99A, Code, and that, after the repossession, Dransfield waived all rights in the car by accepting the note of the Greenbrier Company for the value of the car.
On the question of whether the cars sold to the Greenbrier Company were for resale, Mr. Boone, manager and secretary-treasurer of the Boone Company, testified that his company was the state distributor for the Gardner automobile; that, when it sold cars to the local agents, the agents were expected to resell them; and that it would be "natural" for the Greenbrier Company to resell the two cars, but he had not understood that they were going to do so. Mr. O'Connell, who was one of the partners composing the Greenbrier Company, testified that the purpose of the agency contract between the two companies was for the Greenbrier Company to obtain cars for resale; that the Boone Company sold the Greenbrier Company the two cars in question for resale; that the Boone Company urged the Greenbrier Company to resell them; that it knew at the time the two cars were bought that one of them was to be resold to Dransfield; and that in fact it had agreed to the resale of the cars.
In providing that the consent to resell might be implied as well as express, the statute clearly contemplates the admission of evidence as to the acts and words of the seller. The jury having found in favor of plaintiff, all conflicting testimony will now be resolved in his favor. Musgrave v. Klan, 134 S.E. ___ (). When that is done, a clear case of consent to resell is established. Under ...
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