General Finance Co. of Louisiana, Inc. v. Veith

• Decision Date: 15 November 1937
• Docket Number: 16692
• Court: Court of Appeal of Louisiana — District of US
• Parties: GENERAL FINANCE CO. OF LOUISIANA, Inc., v. VEITH, Jr

177 So. 71

GENERAL FINANCE CO. OF LOUISIANA, Inc., v. VEITH, Jr

No. 16692

Court of Appeal of Louisiana, Orleans.

November 15, 1937

Rehearing denied Nov. 29, 1937.

Stephen C. Hartel and Jonas C. Sporl, both of New Orleans, for appellant.

Prowell & McBride, of New Orleans, for appellee.

OPINION

McCALEB Judge.

This is a controversy involving the title to a certain Buick automobile. On December 4, 1936, the plaintiff finance company, alleging that it is the owner of the car and that the defendant was in possession of it, applied for and obtained a writ of sequestration directing the constable of the First city court to seize and hold it until further orders of court. In obedience to the writ, the constable seized the automobile from the defendant, who later bonded the seizure.

The defendant claims that the writ of sequestration was improvidently issued forasmuch as he is the lawful owner of the automobile, having purchased the same on September 25, 1936, from the plaintiff's duly authorized agent, one Emile J. Parmentel, for the sum of $ 225.

On this issue, a trial was had which resulted in a judgment for the plaintiff. Defendant has appealed from the adverse decision.

We find the facts of the case to be as follows:

The Buick automobile was formerly owned by one Schwicki. The plaintiff finance company held a chattel mortgage on the car, securing the payment of a loan made to Schwicki in the sum of $ 282.50. The latter defaulted in the payment of his obligation to the plaintiff and in March, 1936, plaintiff repossessed the automobile trader the mortgage. Upon acquisition of the ownership of the car, plaintiff delivered it to one Parmentel to be sold by him for plaintiff's account.

Parmentel operated a used car lot where secondhand automobiles were exchanged and sold. The plaintiff, by reason of its business, had occasion to repossess automobiles from time to time, and these cars were turned over by it to Parmentel and other used car dealers to be sold for its account. Mr. Villegas, general manager of the plaintiff company, testified that all automobiles delivered to Parmentel, for sale, were to be disposed of by him only in case the plaintiff approved the transaction; that these cars were stored upon Parmentel's lot without expense to plaintiff; and that Parmentel was entitled to a commission of 15 per cent. of the price paid by the purchaser on all sales made by him.

The defendant's story is that, sometime after the Buick had been stored at Parmentel's place of business for the purpose of sale, he became interested in purchasing it and that he accordingly made a proposal to buy the car for $ 225 to be paid as follows: $ 75 to be allowed him in trade on an old Buick car owned by him, $ 50 in cash, and the balance of $ 100 in monthly instalments of $ 25.00 each. This offer was made in writing to Parmentel, and he in turn submitted it to the plaintiff. The defendant says that Parmental informed him that plaintiff refused the offer made by him because plaintiff considered defendant to be a poor credit risk. On the other hand, plaintiff's witness, Mr. Villegas, stated that the offer was rejected by plaintiff for the reasons that defendant's credit did not warrant the granting of a loan to him (he having previously defaulted in the payment of a debt owed to plaintiff); that the price submitted by defendant was inadequate because plaintiff wanted $ 335 for the car; and that it was not plaintiff's policy to accept other cars in trade on the sale of repossessed automobiles.

The defendant further relates that, after the plaintiff rejected the first offer, he again proposed to purchase the automobile for $ 225 to be paid as follows: An allowance of $ 75 on his old Buick to be given in trade, $ 75 in cash and the balance ($ 75) payable within ten days. This second offer was submitted by defendant to Parmentel and was accepted by the latter. Accordingly, defendant delivered possession of his old car to Parmentel in trade and issued three checks in payment of the balance of the purchase price. Two of these checks were dated September 30, 1936 one for $ 25.00 and one for $ 50 and the other (for $ 75) was dated October 10, 1936. These checks were drawn on the Whitney National Bank by Plumbing Service & Sup. Co., Inc., signed by defendant and payable to the order of Parmentel. The two checks for $ 25 and $ 50, respectively, were indorsed by Parmentel and cashed at the bank. The last check, for $ 75, was indorsed by Parmentel and deposited to the account of the plaintiff.

Plaintiff denies that it ever received either the car traded in by the defendant or the proceeds of any of the checks given by defendant to Parmentel. Parmentel was not called as a witness by the plaintiff to corroborate the evidence of its general manager, Mr. Villegas, and it has failed to show that Parmentel was unavailable or that he was hostile to its contentions. Strange to say, plaintiff saw fit to successfully avoid, by objections sustained by the trial court, the introduction of any testimony respecting misappropriation of its money by Parmentel. In view of the fact that Parmentel has not been produced to corroborate the theory of plaintiff's case, we would be justified, with the record in its present state, in applying the rule that the failure to produce him constituted an admission that if he had testified, his evidence would have been unfavorable to plaintiff's case. But we will not invoke that presumption here, because it is patent to us that Parmentel has either absconded or would have been an unwilling witness.

It will be observed, from the foregoing recital of the facts of the case, that we are called upon to decide (1) whether Parmentel was the agent for the plaintiff, and (2) if so, did the defendant have knowledge of the fact that his authority to bind plaintiff was limited?

We find no difficulty in holding that Parmentel was plaintiff's agent, for it plainly appears that the automobile was placed in his possession for the purpose of sale. But counsel for plaintiff maintain that, inasmuch as it is shown by the uncontroverted statement of Mr. Villegas that Parmentel had only limited authority to sell, and whereas Parmentel acted beyond the scope of his authority, the defendant has not obtained a legal title to the automobile. This postulation is without merit. It is the universal rule of agency "that where the relation of agency legally exists, the principal will be liable to third persons for all acts committed by the agent in his behalf in the course and within the actual or apparent scope of his authority, and this is not altered by the fact that the agent also may be liable, nor by the fact that some of the acts are to the principal's advantage while...