French v. Universal C.I.T. Credit Corp.

• Decision Date: 12 March 1963
• Docket Number: No. 50876,50876
• Parties: Jefferson David FRENCH, Appellee, v. UNIVERSAL C. I. T. CREDIT CORPORATION and Dickey Ford Sales, Inc., Appellants.
• Court: Iowa Supreme Court

Page 476

120 N.W.2d 476

254 Iowa 1044

Jefferson David FRENCH, Appellee, v. UNIVERSAL C. I. T. CREDIT CORPORATION and Dickey Ford Sales, Inc., Appellants.

No. 50876.

Supreme Court of Iowa.

March 12, 1963.

Barnes, Schlegel & McGiverin, Ottumwa, for appellant Universal C. I. T. Credit Corp.

Bailey C. Webber, Ottumwa, for appellant Dickey Ford Sales, Inc.

Robert J. Spayde, Oskaloosa, for appellee.

THORNTON, Justice.

Plaintiff seeks to replevin an automobile repossessed from him by defendants. Plaintiff's claim is that he purchased the 1958 Buick Limited from defendant Dickey Ford Sales, Inc., on March 28, 1959, a conditional sales contract was made out but later he paid for the car in full and the conditional sales contract was to be mailed to him. He did receive a certificate of title showing no lien. Defendant Dickey Ford contends plaintiff bought the car and entered into the conditional sales contract but at no time paid the price and that the failure of the certificate of title to show the lien of the conditional sale was due to a mistake and inadvertence on its part. Universal C. I. T. claims as a purchaser of the conditional sales contract from Dickey Ford and that its repossession was right because plaintiff had not made the payments as provided in the contract.

The jury believed the plaintiff's story and awarded him judgment, fixing the value of the car on the date of the taking at $3,000, and for damages for wrongful detention in the sum of $1,000. Defendants appeal urging numerous errors for reversal.

This is the second trial of this case in the district court. Both verdicts were in favor of plaintiff. The record does not show the reason for granting the second trial.

I. Defendants first contend it was error to admit in evidence plaintiff's bank account showing he had $10,000 on deposit in July of 1956. The claim is that it was too remote and not connected up. Actually it was connected up.

It is a fair inference from plaintiff's testimony that he withdrew the money from the bank, purchased U. S. Savings Bonds with part of it, later cashed the bonds and kept as much as $3,500 in cash in his desk at home, and later transferred such cash to a raincoat placed in the trunk of his 1956 car. From this source he says he took the money to pay Dickey Ford $2,350 for the 1958 Buick on March 28, 1959. He simply traced the source of his funds. That his manner of keeping funds is unusual does not render the evidence inadmissible. The admission of this evidence was within the sound legal discretion of the trial court and no abuse appears.

II. The next complaint of the defendants is it was error to admit the certificate of title, the application for the title, and a copy of the title. The argument apparently is, that because the right to possession was the question involved somehow title was not in dispute. It is true replevin is a possessory action. However, plaintiff's claim was based on his claim that he bought and paid for the Buick. These documents showed defendant Dickey Ford caused a certificate of title to be issued to plaintiff showing no lien. No citation of authority is necessary to show under the circumstances of the case that it would have been error to exclude the certificate of title. See sections 321.45(2) and 321.50, Code of Iowa, 1962, I.C.A. We have examined the authorities cited by defendants, Martin v. Ridge Motor Sales, Inc., 78 Ohio App. 116, 69 N.E.2d 93, and Automobile Finance Co. v. Munday, 137 Ohio St. 504, 30 N.E.2d 1002. They do not support defendants. In Professor Hudson's article, 3 Drake Law Review 3, 13, we do note the statement, '* * * it is believed that a security interest of the type referred to in section 21 [section 321.50, Code of Iowa, 1962, I.C.A.] should be valid as between the parties themselves.' This, however, does not render a certificate showing no lien inadmissible. In this regard defendants also complain it was error not to give Instruction No. 1 requested by them. The request in part reads:

'* * *, you are instructed that as between the seller and the buyer there exists a valid lien by conditional sales contract with reference to a motor vehicle whether the existence of such lien is endorsed or noted on the automobile title or not.'

In this case the conditional sales contract had been assigned by Dickey Ford to Universal C. I. T. Universal C. I. T. repossessed that 1958 Buick. It was not the seller of the Buick. The court in Instruction No. 7 did instruct on the right of Universal C. I. T. to reposses upon failure of plaintiff to pay any installment actually owing. The court correctly applied the law to the evidence.

III. Defendants' next assignment of error is that it was error to refuse to instruct on impeachment of the witness, Albert Sales, for prior inconsistent statements. The witness, Albert Sales, testified for plaintiff. The record shows he was subpoenaed by defendant Dickey Ford. Defendants set out what are claimed to be prior inconsistent statements. The first item so set out is the only matter about which the witness testified on direct examination. It is as follows, direct examination:

'On a Thursday night we had just got out of a movie and was walking and he pulled up at a stop sign in this new car and asked us if we wanted to take a ride. We took a couple of turns around the block and went up to the Pantry Cafe and had coffee.'

On cross-examination had admitted he had testified on a previous trial as follows:

'In the previous trial, I testified it was on a Thursday evening, and I saw him down town and stopped at the Pantry to have a cup of coffee with my wife, and he was down there.'

To impeach a witness by proof of inconsistent statements they must be material to the issue. State v. Powell, 237 Iowa 1227, 1245, 1246, 24 N.W.2d 769; Borough v. Minneapolis & St. L. Ry. Co., 191 Iowa 1216, 1221, 184 N.W. 320; and at least inconsistent, Olson v. Des Moines City Ry. Co., 186 Iowa 384, 395, 396, 170 N.W. 466. In the first instance the question of materiality must be determined by the trial court. The point of the witness' testimony here was that he had seen a receipt for the payment of money for the 1958 Buick. It is apparent the testimony complained of goes not to whether or not the witness saw the receipt but to the manner and order in which the witness and plaintiff arrived at the Pantry Cafe. This testimony is not material on whether or not the witness saw the receipt in plaintiff's possession.

The other testimony of which defendants complain all arose on cross-examination, e. g., at one point on cross-examination he testified, '* * *, French met me first at Williams Dairy on the South side * * *.' Later on cross-examination he testified, 'I did not mention Williams Dairy in my previous testimony.' 'Williams Dairy' does not appear in witness' direct examination on this trial. And the versions are not inconsistent.

On cross-examination in this case the witness testified:

'I don't remember whether it was pen, pencil, ink or typewriter. It was written longhand. I don't remember if there was any typewriting on it. I just glanced at it. * * * It looked like a receipt.'

Later on cross-examination he testified:

'In my former testimony, I testified that the piece of paper was about half typewriting or printing, part of it typed, and part of it written in. I don't remember now about the typewriting or printing on the paper. All I saw was the paper that looked like a receipt. I didn't examine it, just glanced at it.'

These two versions are hardly inconsistent. On direct examination on this trial concerning the receipt the witness said:

'* * *, I seen his name and the words Buick Riviera, or Plaza, something like that, and there were some other writing on it. That's all I can recall. I didn't remember the dates or anything. As I remember it was an ordinary piece of paper.'

It can hardly be said this last version is inconsistent with either of the two on cross-examination. Poor memory is not a prior inconsistent statement.

Another matter appearing in the testimony set out by defendants is the following:

'In the former trial in December 1959, I said I hadn't met French any until I came down from Davenport last night about 8:30 or 9:00 o'clock. I had forgot he had come up to Davenport. I am now sure he did come to Davenport, because that's when he asked me to be a witness on this trial.'

The witness also admitted he denied the Davenport meeting with plaintiff until the county attorney talked with him. No place in his direct examination in this trial does the witness refer to the Davenport meeting with plaintiff. The evidence of the Davenport meeting is admissible to show bias or prejudice of the witness, but it does not furnish a basis for an instruction as to prior inconsistent statements.

An example that inconsistent testimony complained of must be inconsistent with that of the witness given on direct examination is found in Roberts v. Morse, 190 Iowa 1344, 1348, 181 N.W. 678, 679, 'The conversation of Morse as detailed by this witness was inconsistent with the testimony given by him as a witness for the defendants.' We find no error at this point.

IV. Defendants complain of questions asked Mr. Miller, vice president of Dickey Ford, the man who sold the 1958 Buick to plaintiff, and the one who plaintiff claims he paid for the car and gave him the receipt. The questions asked concerned gambling by Mr. Miller. The record shows plaintiff testified Mr. Miller stated he (Miller) was feeling a little rough, that he lost $350 gambling the night before. Defendants did not object to this testimony. When similar testimony was sought to be elicited from Mr. Wessell, a car salesman who accompanied plaintiff at the time he purchased the 1958 Buick, defendants did object on the grounds such evidence was immaterial and the form of the question leading. The witness was allowed to testify. He stated:

'I think it was strictly a conversation...