Indiana Investment and Securities Company v. Whisman
| Decision Date | 15 March 1923 |
| Docket Number | 11,523 |
| Citation | 138 N.E. 512,85 Ind.App. 109 |
| Parties | INDIANA INVESTMENT AND SECURITIES COMPANY v. WHISMAN |
| Court | Indiana Appellate Court |
Rehearing denied May 29, 1923.
Transfer denied June 30, 1926.
From Shelby Circuit Court; Alonzo Blair, Judge.
Action by the Indiana Investment and Securities Company against Fred Whisman. From a judgment for plaintiff, the defendant appeals.
Affirmed.
William T. Young and Russell V. Duncan, for appellant.
McDaniels & Myers and Ed K. Adams, for appellee.
Action by appellant against appellee in replevin, the complaint being in the usual form of such actions. There was an answer in denial and also a second paragraph of affirmative answer to which appellant filed a reply in denial. The affirmative answer was unnecessary. Thompson v. Sweetser (1873), 43 Ind. 312; Shipman Coal, etc., Co. v. Pfeiffer (1895), 11 Ind.App. 445, 39 N.E. 291. The cause was submitted to a jury for trial and there was a verdict in favor of appellee, upon which, after motion for a new trial was overruled, judgment was rendered. Appellant assigns as error the action of the court in overruling its motion for a new trial. So far as the question here involved is concerned, the facts are substantially uncontradicted.
Appellee was a business man in the city of Shelbyville, Indiana, and one Hendrickson was a dealer in automobiles with the sole right to sell Grant automobiles in Shelby county. He had been engaged in that business for about three years prior to August 31, 1921, and thereafter for about three months. Appellee knew that said Hendrickson was in the business of selling Grant automobiles at retail, and on August 30, 1921, had a conversation with him concerning the purchase of a car. At the suggestion of Hendrickson, appellee went to Indianapolis with him to the salesroom of the Melvin company which appellee understood to be state distributor of Grant automobiles, appellee being introduced as a person interested in the purchase of a Grant automobile. Appellee had about made up his mind to purchase the car here involved and so stated to the Melvin company, but deferred finally closing the sale until he could return home and see his wife. Appellee suggested that Hendrickson drive the car to Shelbyville but the Melvin company objected unless the car was actually sold. That night Hendrickson and appellee reached an agreement by which appellee purchased the car, and the next morning, August 31, 1921, he paid Hendrickson in full $ 300 cash, $ 400 by note, and his old car. Appellee did not return to Indianapolis for the car, but sent a party with Hendrickson. Upon arriving in Indianapolis, Hendrickson purchased the car from the Melvin company placing a chattel mortgage thereon to appellant to obtain a part of the purchase price. This mortgage was recorded September 10, 1921, in the recorder's office of Shelby county. Hendrickson drove the car to Shelbyville and delivered it to appellee, who had no knowledge of the fact that a mortgage had been placed thereon. At the time of the execution of such mortgage, appellant was fully informed that Hendrickson was the sole agent in Shelbyville for the Grant automobiles, selling them at retail, that he had a salesroom located in Shelbyville for that purpose, and that he was buying new Grant automobiles and taking them to Shelbyville and selling them at retail. The mortgage executed by Hendrickson to appellant, which was in form a dealer's mortgage, provided that the mortgagor Hendrickson should not remove the auto, "from the salesroom, city and county wherein said property is now situated without the written consent of the mortgagee."
Appellant, in this action, seeks to replevy said automobile, basing its right of possession on the terms of said mortgage.
The principle which must govern in this case is thus stated in Huddy, Automobiles (6th ed.) p. 1100: To sustain this principle the author cites Case Threshing Machine Co. v. Lipper (1916), 181 S.W. (Tex. Civ. App.) 236; Border Nat. Bank v. Coupland (1917), 240 F. 355, 153 C.C.A. 281; Cudd v. Rodgers (1918), 111 S.C. 507, 98 S.E. 796; O'Neil v. Cheatwood (1920), 127 Va. 96, 102 S.E. 596.
In the Cudd case, the action was to recover an automobile, and the facts involved were very much the same as in the instant case. Johnston was a vendor of cars and had no money. He purchased six cars and Cudd loaned him the money to pay for the same, taking a mortgage on the cars. Johnston's practice was to sell the cars and he sold one to Crim and it was from that person appellee bought the car. It was contended by appellee that appellant authorized the sale and disposal of the automobile to him or to any one else to whom it could be sold, and that therefore appellant was estopped from asserting his lien as against the purchaser, and the court, holding that there could be no recovery, states that, "No argument is needed to prove that if a mortgagee permits his mortgagor to engage in trade, and to sell the incumbered property to whoever comes to buy, then the buyer takes his goods free from the lien of the mortgage."
In the O'Neil case, it was held that where a bill of sale covering an automobile was given by a dealer to the one who had lent him money to enable him to secure the car from the freight office, and the automobile was left for sale with the dealer, the bill of sale was void as to the buyer of the car from the dealer, and unless she had some notice of the lender's title, other than that...
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Indiana Inv. & Sec. Co. v. Whisman
...85 Ind.App. 109138 N.E. 512INDIANA INVESTMENT & SECURITIES CO.v.WHISMAN.No. 11523.*Appellate Court of Indiana, Division No. 2.March 15, 1923. ... Blair, Judge. Action in replevin by the Indiana Investment & Securities Company against Fred Whisman. From judgment for defendant, plaintiff appeals. Affirmed.Wm. T. Young and ......