Guthrie v. Halloran

• Court: Montana Supreme Court
• Writing for the Court: GALEN, J.
• Citation: Guthrie v. Halloran, 90 Mont. 373, 3 P.2d 406 (Mont. 1931)
• Decision Date: 26 September 1931
• Docket Number: 6797.
• Parties: GUTHRIE v. HALLORAN et al.

3 P.2d 406

90 Mont. 373

GUTHRIE v. HALLORAN et al.

No. 6797.

Supreme Court of Montana

September 26, 1931

Appeal from District Court, Silver Bow County; Wm. E. Carroll Judge.

Action by Joe Guthrie against Joseph W. Halloran and others copartners, doing business under the firm name and style of the Halloran Bennett Motor Company, with a cross-complaint by defendants. Judgment for plaintiff, and defendants appeal.

Reversed and remanded, with directions.

John K Claxton, of Butte, for appellants.

George D. Toole and C. S. Wagner, both of Butte, for respondent.

GALEN J.

This action was instituted to recover $375 damages for the conversion of a Chevrolet automobile. The complaint is in ordinary form. The defendants, by their answer, made general denial of the material allegations of the complaint and by way of cross-complaint, designated counterclaim, sought to recover the sum of $126 on a promissory note executed and delivered to the defendants on July 18, 1928, upon the exchange of an Essex used automobile for the Chevrolet car involved, together with attorney's fees and costs. Issue was joined by reply, and the cause was tried to a jury, which rendered verdict against the defendants and in favor of the plaintiff for the sum of $275, together with interest thereon from July 18, 1928. Judgment was regularly entered accordingly. The defendants moved for a new trial, which was denied, and the cause is now before us on appeal from the judgment. During the progress of the trial the defendants made motion for a nonsuit and also for a directed verdict, both of which were denied.

The determinative question presented for decision by the defendants' several assignments of error is whether the evidence is sufficient to support the judgment.

From the testimony it appears without dispute that at the noon hour of July 18, 1928, the plaintiff visited the used car lot operated by the defendants, adjacent to the building in which they were conducting an automobile sales business and repair shop, contemplating a trade of his Chevrolet car for another used automobile, and was then and there shown a "Hudson coach" by M. W. Wren, who was at the time in the employ of the defendants. As the plaintiff was then in a hurry to return to his work, he gave Wren his residence address, and that evening about 7 o'clock Wren, accompanied by his wife, visited the plaintiff at the latter's home, driving the Hudson coach. For a demonstration the plaintiff and his wife thereupon got into the automobile which was driven by Wren, the plaintiff sitting in the front seat with the driver and Mrs. Guthrie in the back seat with Mrs. Wren. After taking a trip around Lake Avoca, they returned to the plaintiff's residence. Thereupon the plaintiff exhibited his Chevrolet touring car to Wren, and after examining it, Wren made the plaintiff an offer of $275 allowance on a trade for the Hudson coach. The plaintiff raised some objection respecting the condition of the upholstering and tires of the Hudson car. Wren suggested that the plaintiff keep it and drive it, to which the plaintiff acquiesced, and the latter thereupon removed some tools and a tow rope from the Chevrolet car, placed them in the Hudson car, and Wren drove away with the Chevrolet car, leaving the Hudson car in the plaintiff's possession. Before leaving the Guthrie residence, Wren said to the plaintiff: "I'll take your Chevrolet into town and you keep the Hudson coach out here tonight and drive it tonight and tomorrow, and bring it in tomorrow night. I think we can agree upon a price between the two cars." After Mr. Wren left, the plaintiff and his wife got into the Hudson car and drove it about that evening. The next day Mrs. Guthrie and the plaintiff discussed the proposed trade, and decided they wanted a smaller, better car than the Hudson, and Mrs. Guthrie so advised the defendant Halloran, in consequence whereof the Hudson car was taken back to the defendants' garage. That evening, July 19th, about 7 o'clock, Wren again called at the plaintiff's residence driving an "Essex coach." The plaintiff then inquired what had become of the Hudson car. Wren replied that he had a buyer for it and had sold it, and then guaranteed the Essex coach to the plaintiff, and said it was in better shape than the Hudson. The plaintiff said to Wren that he (the plaintiff) wanted his tools out of the Hudson car, so Wren invited the plaintiff to get into the Essex car and they would go down to the garage and get such tools. The plaintiff, accompanied by his wife and her sister, thereupon got into the Essex car and Wren drove them to the defendants' place of business. Upon arriving there Wren asked the plaintiff to go into the office and sign some papers "for the Essex coach," which he did.

In this connection the plaintiff testified:

"I went in and signed up some papers; I didn't read them, but I signed them up. *** When I signed the papers I signed in three or four different places, and then we came out and he gave me my tools, and I got into the Essex coach again. *** I remember signing a note at that time for $126. ***

Q. What was the purpose of giving that note, if you know? A. Well, it was for the car, for the value of $475, as I understood it,--I mean that was the difference I was to pay, the difference between that and my Chevrolet, and I understood the amount I was to pay was $126. *** What I remember signing at that time, seems to me were notes to the Great Falls Finance Company. I didn't read them, and didn't pay very much attention to them,--just signed where they asked me to sign. I don't remember reading a contract in which my Chevrolet car was mentioned. *** After I signed this note h...