Harper v. Abercrombie

• Decision Date: 31 January 1921
• Docket Number: (No. 10563.)
• Court: South Carolina Supreme Court
• Parties: HARPER et al. v. ABERCROMBIE.

105 S.E. 749

HARPER et al.

v.ABERCROMBIE.

(No. 10563.)

Supreme Court of South Carolina.

Jan. 31, 1921.

Appeal from Common Pleas Circuit Court of Laurens County; R. W. Memminger, Judge.

Action by J. C. Harper and others, partners, etc., against John Abercrombie. Judgment for defendant, and plaintiffs appeal. Affirmed.

P. P. McGowan and Dial & Todd, all of Laurens, for appellants.

Simpson, Cooper & Babb, of Laurens, for respondent.

HYDRICK, J. Plaintiffs sued defendant for possession of an automobile, claiming title under a past-due chattel mortgage given them by R. E. Gafrett for the purchase price thereof. The mortgage was dated and recorded April 4, 1919. Defendant denied the allegations of the complaint and set up the defense of estoppel, on the ground that plaintiffs had held Garrett out as their agent to trade the car to him, and that he had traded for it in that belief.

One of the plaintiffs testified that he sold the car to Garrett and took his note due at one day secured by the mortgage for the full amount of the purchase price, $1,095; that as soon as he learned (on April 9th) that Garrett had traded the car to defendant, and had not paid the note and mortgage, he took steps to get possession of it under the mortgage; that Garrett had sold and traded cars for plaintiffs as their agent for about two years prior to December 31, 1918, on which day his contract of agency expired; that while he was their agent he sold and traded a large number of cars for them in the territory assigned to him, and no notice was given the public that his agency had expired; that he owed them about $5,000, growing out of his dealings with them, for which they had been endeavoring to get a settlement on the day they sold the car in question; that in November, 1918, they put three cars into his hands for sale, and took chattel mortgages on them; that he sold them and failed to pay the mortgages, but they never attempted to take the cars from the purchasers under the mortgages; that that was not a straight sale, but the one on April 4th was, but, of course, if Garrett had paid for the car, no attempt would have been made to take it from defendant; that about March 1, 1919, he loaned Garrett a car which he traded to Hill, and turned over Hill's check and car taken in exchange; that he was dissatisfied with the price allowed for Hill's car, and paid Hill $50 to rescind the trade. There was also undisputed evidence that Garrett had assisted in the sale of other cars for plaintiffs in the spring of 1919, before the trade with defendant.

Garrett testified that he had sold and traded cars for plaintiffs, as their agent, for about two years, and was their agent to trade the car in question to defendant, and so told defendant; that he had frequently given plaintiffs his note and mortgage for cars which they put into his hands to trade or sell to enable them to use the same as collateral to raise money to pay for the cars, which were shipped to plaintiffs with draft attached to the bills of lading for the purchase price, and he supposed that was their reason for taking the note and mortgage in question; that the car was turned over to him with the understanding that he was to sell or trade it, and one of the plaintiffs told him to do so; that one of the plaintiffs told him that he had tried to trade another car to defendant a short time before, and told him to trade this one to him.

Defendant and his son testified that one of the plaintiffs tried to trade defendant a secondhand Overland for his Maxwell a week or two before he traded with Garrett, but he told plaintiff that he would not trade for a secondhand car, but might trade for a new Overland 90 (the type of car in question), and plaintiff told him he would send one out by Garrett or Irwin (another salesman) as soon as he got some in; that a week or two later Garrett came with the car in question, and he traded for it, in the belief that he was trading with him as the agent of plaintiffs.

From judgment on a verdict for defendant plaintiffs appealed.

The first point urged by appellants is that the court erred in refusing their motion to direct a verdict in their favor. The fore-going statement of the evidence shows that this ground is untenable.

The next point is that the court charged on the facts. A careful consideration of the charge shows that the judge did not express or intimate his opinion upon any issue of fact.

The next ground is that the court erred in putting upon plaintiffs the burden of proving that the mortgage under which they claimed title to the car was a genuine mortgage to secure an outright sale of the car to Garrett. That was clearly right. The burden was upon plaintiffs to prove every fact in issue which was necessary to establish their title and right to possession of the car.

The next ground is that the court erred in charging the jury as to the comparative negligence of plaintiffs and defendant with respect to the agency of Garrett and notice or knowledge thereof by defendant and...