Garage v. Devonshire Financial Serv. Corp.

• Decision Date: 10 December 1931
• Citation: 277 Mass. 303,178 N.E. 739
• Parties: LINCOLN PARK GARAGE v. DEVONSHIRE FINANCIAL SERVICE CORPORATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

277 Mass. 303

178 N.E. 739

LINCOLN PARK GARAGE

v.DEVONSHIRE FINANCIAL SERVICE CORPORATION.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 10, 1931.

Appeal from Municipal Court of Boston, Appellate Division; Charles L. Carr, Judge.

Action by the Lincoln Park Garage against the Devonshire Financial Service Corporation. From a judgment of the Appellate Division vacating finding for plaintiff and ordering judgment for defendant, plaintiff appeals.

Affirmed.

W. E. Corkum, of Boston, for appellant.

A. A. Gillette, of Boston, for appellee.

FIELD, J.

This is an action of tort for the coversion of an automobile. At the trial in the Municipal Court of the City of Boston the judge refused to rule, as requested by the defendant, taht ‘on all the evidence the plaintiff is not entitled to recover in this action,’ and to make other rulings requested by the defendant, and found for the plaintiff. On report to the Appellate Division the finding was vacated and judgment ordered for the defendant. The plaintiff appealed.

The evidence in its aspect most favorable to the plaintiff may be summarized as follows: The plaintiff sold an automobile to one Richmond on conditional sale. Thereafter, Richmond, with the consent of the plaintiff's president, sold this automobile and received as payment therefor $275 in cash and another automobile. The plaintiff's president, before giving consent to the sale of the first automobile, had requested Richmond to let him see the second automobile, and Richmond did so. In the course of conversation at that time the plaintiff's president told Richmond that the written agreement for conditional sale of the first automobile would have to be changed to cover the second automobile, and Richmond assented. Richmond, in completing the sale of the first automobile, turned over to the plaintiff the cash received from the sale thereof to reduce his indebtedness on the contract for conditional sale, and kept the second automobile. At some time after the conversation between the plaintiff's president and Richmond, the former caused the written agreement of conditional sale of the first automobile to be changed by striking out the description thereof and substituting a description of the second automobile. Richmond did not register this automobile, but used thereon the plaintiff's dealer's number plates then in Richmond's possession, which had been used on the other automobile, and kept the second automobile in a garage operated by a partnership of which Richmond was a member. After the exchange was made Richmond paid the plaintiff two installments on the contract of conditional sale. The plaintiff's president saw the second automobile at the garage two or three times a week. Richmond sold it to one Dawes who did not register it, but continued to use thereon the plaintiff's dealer's number plates and to keep the automobile in the same garage. Richmond did not tell the plaintiff's president of the sale to Dawes. A written agreement of conditional sale of this automobile was entered into between Richmond's firm and Dawes, and Dawes gave a note for the deferred payments on the purchase price under this contract. The note and agreement of conditional sale were negotiated and assigned by Richmond's firm to the defendant. Dawes never made any payment on the note and the defendant took possession of the automobile. The plaintiff brings this action contending that the defendant's taking possession of the automobile was a conversion.

[3] It was error for the trial judge to refuse to rule that ‘On all the evidence the plaintiff is not entitled to recover in this action.’ The declaration alleged conversion of the automobile. See Raymond Syndicate v. Guttentag, 177 Mass. 562, 564, 59 N. E. 446;Beacon v. George, 206 Mass. 566, 570, 92 N. E. 721. However, no question of pleading appears to have been raised or passed upon in the trial court and, consequently, this ruling of the trial judge cannot be reversed if the evidence was sufficient in any legal form of declaring to justify a finding for the plaintiff. See Weiner v. D. A. Schulte, Inc. (Mass.) 176 N. E. 114. Even on this broad principle the evidence did not warrant a finding for the plaintiff, for it did not show that at the time the difendant took possession of the automobile the plaintiff had possession, or the right to immediate possession thereof, or any right of property therein as against the defendant.

The facts that Dawes used the plaintiff's dealer's number plates on the automobile, and that it was kept by Dawes at the garage operated by Richmond's firm, where the plaintiff's president saw it from time to time, are not sufficient to support a finding that it was in the possession of the plaintiff at the time the defendant took possession of it. Furthermore, the evidence furnished no basis for a finding that the plaintiff then had any right to immediate possession of this automobile not dependent upon title.

The evidence did not warrant a finding that the plaintiff, as against the defendant, had title to the automobile alleged to have been converted. It could not...