Glass v. Continental Guaranty Corp.

• Decision Date: 07 May 1921
• Citation: 88 So. 876,81 Fla. 687
• Parties: GLASS v. CONTINENTAL GUARANTY CORPORATION.
• Court: Florida Supreme Court

88 So. 876

81 Fla. 687

GLASS v. CONTINENTAL GUARANTY CORPORATION.

Florida Supreme Court

May 7, 1921

Rehearing Denied June 11, 1921.

Error to Circuit Court, St. Johns County; George Couper Gibbs Judge.

Replevin by the Continental Guaranty Corporation against Thomas B Glass. Judgment for plaintiff, and defendant brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Defendant may take writ of error separate from sureties on forthcoming bond. The defendant in a replevin action may take a writ of error separate from his sureties on a forthcoming bond.

No one can confer better title to personal property than he has in absence of estoppel. It is a general principle applicable to traffic in personal property, that no one can transfer or confer a better title than he has, unless some principle of estoppel operates to bar a claim under an otherwise better title.

Principle of title by sale in market overt does not obtain in this country. In England, at common law, a sale in market overt confers a title upon a bona fide purchaser, though the seller had no title whatever; but in this country there are no such markets, and the principle of title acquired by purchase and sale in market overt does not obtain.

Possession only prima facie title; purchaser of personalty from one in possession under incomplete conditional sale cannot defeat recovery by true owner. The mere possession of personal property is only prima facie evidece of title; and a purchaser of personal property from one who has only the possession of the property under an incomplete conditional sale cannot in general defeat a recovery by the true owner although such purchaser bought for value and without notice.

Purchaser from dealer for value without notice held to obtain title as against original owner, who had reserved title. Where an owner consigns personal property to a dealer in such goods with express or implied authority to sell, or delivers or consigns to another personal property with indicia of ownership or of authority to sell, but with title reserved in the owner until the payment of the purchase price, a purchaser, who pays value for such goods and gets possession thereof without notice of the terms or conditions of the original delivery, consignment, or sale, obtains a good title as against the original owner, which will in general prevail against the latter's reserved title.

Loss should fall on that one of two innocent parties who by his conduct creates circumstances enabling third party to perpetrate wrong. Where one of two innocent parties must suffer through the act or negligence of a third person, the loss should fall upon the one who by his conduct created the circumstances which enabled the third party to perpetrate the wrong or cause the loss.

Owner of automobile under secret trust held estopped to assert title against bona fide purchaser without notice. An alleged owner of an automobile under a secret trust, who permits a dealer in automobiles to have the car at his sales place under circumstances that indicated authority to sell, is estopped to assert his title against a bona fide purchaser for value and without notice of the secret claim.

COUNSEL

George W. Bassett, Jr., of St. Augustine, for plaintiff in error.

George M. Powell and Milam & Milam, all of Jacksonville, for defendant in error.

OPINION

WHITFIELD, J.

The defendant in error brought replevin against Glass, involving an automobile. A demurrer to the declaration was overruled. The defendant pleaded not guilty, and the case was tried on the following:

'Stipulation.

'Come now Milam & Milam and MacWilliams & Bassett, attorneys for the respective parties as above, and hereby stipulate and agree as follows:

'1. That jury be waived and this cause submitted to the court on the stipulation of fact hereinafter contained.

'2. That the facts admitted as true in said cause, and which would be adduced before a jury, had said cause been tried, are as follows:

'The plaintiff corporation, organized under the banking laws of the state of New York, has its principal office in New York City, and, according to the powers and practices of such banking institutions, it finances commercial transaction, including the shipment of goods from one point to another, and is represented for certain purposes in such transactions by local corresponding bank.

'Calvin Zimmerman, on February 21, 1918, was trading and doing business in Jacksonville, Fla., under the trade-name and style of National Motor Company, and, in keeping with the custom and usual methods of doing business as such distributor, purchased National automobiles from the manufacturer, which automobiles, when purchased, were offered for sale on his own responsibility, all in keeping with the customs and usages controlling in the automobile distribution industry, which said customs and usages as aforesaid were entirely unknown to defendant, T. B. Glass.

'During January, 1918, the plaintiff corporation financed a shipment of automobiles from the manufacturer, the National Motor Car & Vehicle Company, of Indianapolis, Ind., to Calvin Zimmerman, of Jacksonville, Fla., trading under the name of National Motor Company, one of which automobiles is replevied in this action, being National automobile, serial No. 23819. The facts concerning said automobile are as follows:

'Said Zimmerman agreed to purchase certain automobiles from the National Motor Car & Vehicle Company, of Indianapolis, the manufacturer, and the said manufacturer shipped two automobiles, one being said automobile No. 23819 in Pa. R. R. car 47317, sending forward of lading with sight draft attached forward to the Atlantic National Bank, of Jacksonville, Fla., the bill of lading to be surrendered to Zimmerman only upon his payment of the sight draft. Before the shipment reached Florida, Zimmerman requested both the manufacturer and the plaintiff corporation to handle this shipment on a time draft in accordance with the customary banking credit trust receipt plan.

'Under this banking agreement the National Motor Car & Vehicle Company, the manufacturers, drew a four months draft on Zimmerman, which the plaintiff corporation discounted and paid to the National Motor Car & Vehicle Company the amount thereof, to wit, $2,758.19, and the National Motor Car & Vehicle Company thereupon withdrew its sight draft and instructed the Atlantic National Bank at Jacksonville to hold the bill of lading for the plaintiff corporation. The plaintiff corporation then forwarded the time draft to the Atlantic National Bank, and said bank, following the instructions of the plaintiff corporation, delivered the bill of lading to Zimmerman, having first secured Zimmerman's acceptance of the time draft and his execution of a trust receipt, disclaiming acquisition of title by him, reading as follows:

"Trust Receipt

"Guaranty Identification No. 1038.

"Always quote this number when reporting.

"Jacksonville, Fla., Jany. 14, 1918.

"Received of Atlantic National Bank, of Jacksonville, Fla., for Guaranty Securities Corporation. New York City, bill of landing for car No. 47317 Initials PA for one carload of 2 motor vehicles----

Model Nos. AF 6-Cyl AF 6-Cyl

Make National 23819 23897

Serial Nos. 23819 23897

"In consideration thereof I (we) hereby agree to take and hold said motor vehicles as the property of said Guaranty Securities Corporation, for the purpose of storing said property; and I (we) hereby agree to keep said motor vehicles brand new and not to operate them for demonstration or otherwise, and to return said motor vehicles to said bank or to said Guaranty Securities Corporation upon demand. I (we) agree not to sell, loan, rent, deliver, mortgage, pledge or otherwise dispose of any of said motor vehicles to any other person, except upon written order from Guaranty Securities Corporation for release from trust, upon payment to said bank of the amount required by said order, and upon the indorsement on the back of this trust receipt by said bank of a release from trust.

"National Motor Co., by Calvin Zimmerman.'

'On one side of trust receipt is the following:

"Property in Trust.

"Take Notice: No one has any authority to vary the terms of this trust receipt.'

----which said trust receipt has not been recorded in the state of Florida; and the defendant reserves the right at any time before final hearing to require proper proof of the execution of said trust receipt before same shall be admitted in evidence.

'Thereafter, on or about February 21, 1918, before the maturity of said time draft and without the permission or consent of the plaintiff corporation, but contrary to the express terms of said trust receipt, Zimmerman, trading under the name National Motor Company, disposed of said automobile to the defendant, Glass, and the defendant paid said Zimmerman the sum of $1,000 and delivered to said Zimmerman one Chandler Clover Leaf roadster, valued at $1,350, making a total purchase price paid by the defendant to Zimmerman $2,350.

'The defendant, Glass, on February 21, 1918, purchased from the said Calvin Zimmerman, doing business in Jacksonville, Fla., as National Motor Company, the National automobile, serial No. 23819, as above described, for the sum of $2,350, which amount was paid by delivery to the said Zimmerman of one Chandler Clover Leaf roadster, valued at $1,350, and two notes, in the sum of $500 each, which notes were subsequently paid by the defendant.

'3. The defendant, Glass, made no personal inquiries or investigation as to the ownership of the car in question, but was of the opinion that the said Calvin Zimmerman was the owner thereof, on account of the following facts:

'(a) That one Jack O'Neal, a resident of the city...