Kentucky Motor Car Co. v. Darenkamp

• Citation: 162 Ky. 219,172 S.W. 524
• Parties: KENTUCKY MOTOR CAR CO. v. DARENKAMP ET AL.
• Decision Date: 19 January 1915
• Court: Kentucky Court of Appeals

172 S.W. 524

162 Ky. 219

KENTUCKY MOTOR CAR CO. v. DARENKAMP ET AL.

Court of Appeals of Kentucky.

January 19, 1915

Appeal from Circuit Court, Kenton County; Common Law and Equity Division.

Action by the Kentucky Motor Car Company against Edward Darenkamp consolidated with suit by John Darenkamp against the company in which the company counterclaimed. Judgment for Edward Darenkamp and also for John Darenkamp, and from the latter judgment the company appeals. Affirmed.

Richard G. Williams and Byrne & Read, all of Covington, for appellant.

Robert C. Simmons, of Covington, for appellees.

CARROLL J.

The appellant motor car company sold, as it claimed, to the appellees, Ed and John Darenkamp, who are brothers, an automobile for $700. It appears that on October 26, 1912, Ed Darenkamp signed a contract agreeing to purchase an automobile for $700, $10 of which was paid in cash, and the contract recited that the balance of $690 was to be paid "when delivery of car is tendered." On November 2d $490 was paid on the car, leaving a balance of $200 due, and a few weeks after this the motor car company brought suit against Ed Darenkamp to recover this amount. In January 1913, Ed Darenkamp filed an answer in which he denied that he purchased the car, and said that it had been sold to his brother, John Darenkamp, and that by mistake he had signed the contract. He further pleaded his infancy as a defense. About the time this answer was filed, John Darenkamp brought suit against the motor car company to recover $500 which he alleged he had paid on the purchase price, upon the ground that the company refused to deliver to him the car he had purchased. Thereafter the suit of the motor car company against Edward Darenkamp and the suit of John Darenkamp against the motor car company were consolidated, and, in a pleading which was at once a reply to the answer and a counterclaim against John Darenkamp, it denied the affirmative matter in the answer of Ed Darenkamp and for counterclaim against John Darenkamp sought to recover the balance of $200 it alleged he owed, and further pleaded that the car was sold to both Ed and John Darenkamp. It might here be noted that it appears from the record that John Darenkamp on October 26th signed a contract in terms the same as the one signed by Ed. The controversy between these parties grew out of the fact that after the $500 had been paid, and while the car was in the possession of the motor company at its garage, a demonstrator in its employment took Ed Darenkamp out for a ride, during which the car was badly damaged in a collision with a telegraph pole or some other object. A day or two after this, John Darenkamp went to the motor car company to pay the balance due on the car, $200, and get possession of it; but when he was informed that he would have to take the car in its damaged condition or else pay the expense of repairing it, something over $100, he declined to accept the car, and thereupon these suits were brought.

The case for the motor car company was practiced in the trial court upon the theory that the car at the time it was injured was the property of the Darenkamps, it having been sold and delivered to them before that time. On the other hand, the defense was that, although the car had been purchased and $500 paid on the purchase price, the title to the car had not passed, and was not to pass until it was delivered, and delivery was not to take place until the balance of $200 was paid, which balance had not been paid when the accident occurred, and because this sum was due and unpaid the motor car company retained the possession of the car. On a trial of the case the court instructed the jury to...