Kelly v. Kremer Motor Co., 27393.
| Decision Date | 24 May 1929 |
| Docket Number | No. 27393.,27393. |
| Citation | 225 N.W. 425,177 Minn. 515 |
| Parties | KELLY v. KREMER MOTOR CO. et al. |
| Court | Minnesota Supreme Court |
Appeal from Municipal Court of Minneapolis; Manley L. Fosseen, Judge.
Suit by B. R. Kelly against the Kremer Motor Company and others. From an order denying their motion for a new trial, defendants appeal. Affirmed.
A. V. Rieke, Bonita F. Rieke, and Maurice H. Rieke, all of Minneapolis, for appellants.
E. E. Eder, of Minneapolis, for respondent.
Defendants appeal from the order denying them a new trial. The suit is upon a replevin bond in an action wherein this plaintiff was defendant and the defendant Kremer Motor Company, a corporation was the plaintiff. The other defendant herein is the replevin bond surety. The property taken by Kremer Motor Company under the writ of replevin was a Dort touring car. That action was tried and the finding made that this plaintiff at the commencement of the action was in possession of the car as agent of the Kelly Automobile Company; that neither at the time of the commencement of the action, nor at any subsequent time, was the Kremer Motor Company owner or entitled to possession of the car, and judgment was directed that Kremer Motor Company take nothing and that this plaintiff recover costs. Judgment was entered accordingly, and the costs taxed have been paid. The car was never returned. In the present action on the bond a recovery was awarded against both defendants for the value of the car, found to be $635 when taken under the writ.
No finding of fact is challenged. The only question presented is the right of plaintiff to maintain this action for the value of the car, the title of which is alleged in the complaint to be in the Kelly Automobile Company. The question was presented in the trial court by an objection to the introduction of evidence, by motion to strike out the evidence received, by motion for dismissal, and by requested amended findings. Defendants claim that since plaintiff was and is only the agent of the owner of the car he has no right to maintain an action on the bond. The court in the replevin action determined that this plaintiff was in possession of the car as agent of the Kelly Automobile Corporation (Company), and in the present action that he was in possession as agent or bailee. A bailee may maintain an action on a replevin bond on the theory that he is liable over to the owner. 6 C. J. § 177, p. 1167. Warren v. Finn, 84 N. J. Law, 206, 86 A. 530; United States v. Atlantic Coast Line Ry. Co. (D. C.) 206 F. 190. Parks v. Fogleman, 97 Minn. 157, 105 N. W. 560, 4 L. R. A. (N. S.) 363, 114 Am. St. Rep. 703, holds that an agent may in his own name maintain an action to recover his principal's money paid to another by mistake. But without regard to the fact that plaintiff was agent or bailee and not owner, we think defendants are not in position to question his right to sue for breach of a bond wherein he is...
To continue reading
Request your trial