Dresher v. Roy Wilmeth Co.

• Decision Date: 19 November 1948
• Docket Number: 17697.
• Citation: 82 N.E.2d 260,118 Ind.App. 542
• Parties: DRESHER v. ROY WILMETH CO., Inc.
• Court: Indiana Appellate Court

82 N.E.2d 260

118 Ind.App. 542

DRESHER v. ROY WILMETH CO., Inc.

No. 17697.

Appellate Court of Indiana, in Banc.

November 19, 1948

Appeal from Superior Court, Marion County; Hezzie B. Pike Judge.

Neal & Williams, of Indianapolis, for appellant.

Hugh E. Reynolds and Slaymaker, Merrell, Locke & Reynolds, all of Indianapolis, Ind., for appellee.

HAMILTON Judge.

This is an appeal by appellant from an adverse judgment in an action in replevin wherein he sought to recover from appellee the possession of a 1940 four-door Cadillac sedan automobile. Issues were joined and the cause submitted for trial to the court without a jury. The court found the facts specially and stated its conclusions of law thereon favorably to the appellee and against appellant. Judgment was duly rendered upon the conclusions of law, and upon the overruling of appellant's motion for a new trial, he prosecutes this appeal.

The errors assigned are: (1) That the court erred in overruling the motion for a new trial; (2) that the court erred in its first conclusion of law; and (3) that the court erred in its second conclusion of law.

An examination of the record discloses sufficient evidence to establish the following facts, which were found specially by the court, to wit:

That the appellant (plaintiff below) was on October 22, 1945 engaged in the purchase and sale of used cars; that on October 22, 1945, said appellant purchased a 1940 Cadillac four-door sedan automobile from one Jewell F. Largent for the sum of $1,300; that the certificate of title to said car was assigned by said Largent to the appellant who did not apply for a certificate of title therefor in his own name. On October 24, 1945, a man who represented his name to be Charles Romans, of Vevay, Indiana, came to appellant's place of business to buy an automobile; that appellant sold said 1940 four-door sedan Cadillac to said person for the sum of $1,795; that in payment of said car said purchaser gave appellant a check in the sum of $1,795, dated October 24 1945, drawn on the First National Bank of Vevay, Indiana payable to O. L. Dresher and signed by said purchaser as Charles Romans; that plaintiff endorsed said check and on October 25, 1945, deposited said check in his deposit account at the Bankers Trust Company, Indianapolis, and said check was duly sent to the First National Bank, Vevay, Indiana, for payment, where payment was refused as a forgery and worthless and returned to appellant on October 30, 1945.

At the time of the transaction on October 24, 1945, appellant executed and delivered a bill of sale for said Cadillac car to said purchaser and also executed and delivered to him an assignment of title to said car upon the certificate of title which appellant had received from said Largent on October 22, 1945. Said purchaser in the name of Charles Romans signed an application for a certificate of title to said automobile which was prepared by appellant and who witnessed the signature of said purchaser in the name of Charles Romans and appellant acknowledged such signature as a notary public. In preparing said application for a certificate of title, appellant stated thereon that there were no liens or encumbrances on said automobile. Thereupon, the purchaser, who represented himself as Charles Romans, took possession of the car with the knowledge and consent of the appellant and drove it from appellant's place of business to the State House in Indianapolis and obtained a certificate of title for said automobile in the name of Charles Romans, which certificate of title was in the form required by law and did not disclose the name of any prior owner, nor any liens or encumbrances. License plates were duly issued by the Department of Motor Vehicles for said automobile, which plates the purchaser, as Charles Romans, took to the appellant's place of business, where they were attached to the car, after which said purchaser drove the car away with the knowledge and consent of appellant. On October 25, 1945, said purchaser, in the name of Charles Romans, drove said Cadillac car to the appellee's place of business in Indianapolis and offered to sell the same to appellee, which agreed to, and did, purchase said car at and for the sum of $1,300. The person in possession of said car under the name of Charles Romans assigned the certificate of title for said car which had been issued by the Department of Motor Vehicles on October 24, 1945, to the appellee and thereupon appellee executed and delivered its check dated October 25, 1945, and drawn upon the Indiana National Bank, Indianapolis, in the sum of $1,300, payable to Charles Romans, the person in possession of said automobile. On the same date, October 25, said person in the name of Charles Romans presented said check to the Indiana National Bank upon which the check was drawn and received the cash thereon, and said check was duly charged against appellee's deposit account in said bank. The person who purchased said car from appellant, and who sold the same car to the appellee, and who executed and assigned the certificate of title to said car, and who endorsed the check and received the cash from the Indiana National Bank, and who claimed to be Charles...