Herbertson v. Cohen, 17461

• Decision Date: 22 August 1955
• Docket Number: No. 17461,17461
• Citation: 132 Colo. 231,287 P.2d 47
• Parties: C. J. HERBERTSON and Floyd J. Herbertson, Individually and Doing Business as General Auto & Truck Leasing Co., a Partnership, Plaintiff in Error, v. Robert COHEN, Defendant in Error.
• Court: Colorado Supreme Court

Page 47

287 P.2d 47

132 Colo. 231

C. J. HERBERTSON and Floyd J. Herbertson, Individually and

Doing Business as General Auto & Truck Leasing

Co., a Partnership, Plaintiff in Error, v. Robert COHEN, Defendant in Error.

No. 17461.

Supreme Court of Colorado, En Banc.

Aug. 22, 1955.

McDougal, Rogers & Sweeney, Denver, for plaintiff in error.

Edward H. Sherman, Max M. Glaston, Denver, for defendant in error.

Before ALTER, C. J., and MOORE, HOLLAND, CLARK, LINDSLEY, BRANDFIELD and KNAUSS, JJ.

KNAUSS, Justice.

We will refer to the parties as they appeared in the trial court, where defendant in error was plaintiff and plaintiffs in error were defendants. Trial proceeded upon plaintiff's amended complaint in which Centennial Casualty Company and U-Drive-It System, Inc. of Denver were named as defendants. The action as to Centennial Casualty Company and U-Drive-It System, Inc. was dismissed at the trial.

Plaintiff's complaint was for conversion of a 1950 Nash automobile, alleged to be of the value of $2,200. It appears that R. L. Duff was the owner of this automobile, which had been damaged in an accident, and that plaintiff Cohen held a chattel mortgage on the automobile. It is also admitted that C. J. Herbertson, and his son, Floyd J. Herbertson, were doing business under the name and style of General Auto and Truck Leasing Company, which concern was engaged in the garage business and in repairing damaged cars. It is further admitted that Centennial Casualty Company had issued a collision insurance policy on said automobile, and that all the stock in the Centennial Casualty Company, except qualifying shares, was held by C. J. Herbertson and his son Floyd J. Herbertson.

Following the accident, and at the request of the Centennial Casualty Company, the automobile was delivered for repairs to General Auto and Truck Leasing Company. The repairs were made and after demand the defendants retained possession of said automobile and refused to deliver it to plaintiff, who meanwhile, under the mortgage, claimed the automobile. Duff made no claim to the car, and has not appeared in the action.

Defendants, by their answer and cross-complaint, admitted the car was damaged in an accident; that it was insured by the Centennial Casualty Company, and that said car was delivered to General Auto and Truck Leasing Company under instructions from the Centennial Casualty Company. It was alleged the reasonable value of the repairs made by General Auto and Truck Leasing was $421, and defendants allege they were ready and willing to deliver the car to plaintiff and offered to do so upon payment of 'proper charges', and they admitted the repair charges had been paid, except the sum of $50 which they alleged plaintiff refused to pay; that plaintiff refused to pay the storage charges after the repairs had been completed, and defendants prayed for judgment against plaintiff in the sum of $585.

Trial was to a jury and resulted in a verdict in favor of plaintiff in the sum of $1,800, upon which judgment was entered, and defendants bring the cause here by writ of error, urging for reversal: 1. That at the time of the alleged conversation plaintiff had made an outright assignment to a bank of his title to the note and chattel mortgage on the automobile and could not maintain the suit. 2. That there was no conversion. 3. That the trial court erred in giving certain instructions to the jury. 4. That the trial court erred in refusing to give certain instructions requested by defendants. The foregoing in one form or another constitute the grounds claimed for reversal.

Plaintiff had sufficient interest in the note and chattel mortgage to maintain the action for conversion. A careful reading of the record discloses that the note in question was merely collateral for a loan at a Bank and not an absolute transfer of title. We believe it is fundamental that a transfer of a note and mortgage as collateral does not preclude the mortgagee in the right to recover for conversion of the property covered by the mortgage. The facts as disclosed by this record were that plaintiff had a line of credit at the Bank and the note and mortgage in question were...