Gibson v. Bolner, 34484
| Decision Date | 13 June 1956 |
| Docket Number | No. 34484,34484 |
| Parties | , 59 O.O. 467 GIBSON, Appellee, v. BOLNER et al.; Bartlett Traller Corp., Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. A manufacturer of a trailer is not a 'dealer' in motor vehicles, referred to in Section 4505.06, Revised Code, and is under no obligation to obtain an Ohio certificate of title in the name of his purchaser, although such manufacturer sells the trailer direct to a user.
2. An out-of-state certificate of title is a public act and record of the state where issued and as such is entitled to full faith and credit in the courts of Ohio, provided that the according of full faith and credit to such certificate does not do violence to the established policy of Ohio as expressed in its statutes.
On December 8, 1953, defendant Malcolm D. Bolner, representing himself to be Henry B. Bolner (father of Malcolm), placed an order for a refrigerator trailer with defendant Bartlett Trailer Corporation, appellant herein. Following a credit investigation of Henry, Bartlett accepted the order along with an $1,800 down payment and a chattel mortgage for the balance of the purchase price amounting to $6,939.60 and delivered the trailer to Malcolm. A manufacturer's certificate of origin was issued by Bartlett in Henry's name, on which certificate appears a notation of the chattel mortgage in Bartlett's favor.
Sometime about the middle of February 1954, while using an Autocar tractor as the motive power for the Bartlett trailer in the state of Florida, Malcolm was apprehended by a license inspector for using an improper license (Malcolm had taken a license from a wrecked trailer in the yard of Bartlett). To keep himself in the clear with the Florida authorities, Malcolm obtained a Florida certificate of title to the trailer, again using the name of his father. On this Florida certificate Bartlett was designated as the first-lien holder.
Prior to and during the times mentioned hereinabove, the plaintiff, Vira W. Gibson, appellee herein, became enamored by Malcolm and talk of marriage occurred between the two. The romance had developed to the point where, by November 1953, Malcolm was able to obtain a loan of $4,000 from Vira, which he used as a down payment and for insurance on the Autocar tractor. The following month he obtained $2,000 more, $1,800 of which was, with Vira's knowledge, used as the down payment on the trailer purchased from Bartlett.
Sometime in April 1954, the ardor of their romance cooled and plans for their marriage were abandoned. Vira became concerned about her $6,000 and on June 8 demanded and received from Malcolm a cognovit note for that amount. On the same date, Malcolm's father, Henry, executed chattel mortgages in Vira's favor on the Bartlett trailer, the Autocar tractor and a Lincoln automobile, which mortgages were filed with the recorder of Muskingum County. When Malcolm defaulted in payment on the note, Vira put it in judgment.
The present action was instituted in the Common Pleas Court of Muskingum County to foreclose the chattel mortgages, and at Vira's request a receiver was appointed to take custody of the three vehicles. The Autocar tractor and the Lincoln are not in controversy here. The argument below, as well as here, has resolved itself into one between Vira and Bartlett.
The judgment of the Common Pleas Court holding Vira's chattel mortgage superior to that of Bartlett and allocating one-half of the receiver's fee of $612.15 to Bartlett was affirmed by the Court of Appeals.
The cause is before this court as of right and upon the allowance of Bartlett's motion to certify the record.
Zinn, Tate & Cultice, Zanesville, for appellant.
Graham, Graham, Gottlieb & Johnston, Zanesville, for appellee.
Were it not for Section 4505.04, Revised Code, which provides that no court shall recognize the right, title, claim or interest of any person in or to any motor vehicle unless evidenced by a certificate of title or a manufacturer's or importer's certificate, it would be an easy matter to hold that, since Bartlett dealt with Malcolm, title passed to Malcolm and liability attached to him in spite of an assumed name, and that, therefore, Henry and nothing which he could convey to Vira. However, since both indicia of title--the manufacturer's statement of origin and the Florida certificate of title--are in Henry's name, it is necessary to consider the priorities of the two mortgages.
Plaintiff's contention for priority is based on a failure of Bartlett to comply with Section 4505.06, Revised Code, which reads in part as follows:
(Emphasis added.)
Had Bartlett obtained such an Ohio certificate, contends plaintiff, the Bolners would not have been in a position to defraud anyone. Obviously, this theory hinges on whether Bartlett was a 'dealer.'
The following testimony of ...
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