Kirby v. Carey, 86.

• Decision Date: 10 December 1924
• Docket Number: No. 86.,86.
• Citation: 229 Mich. 129,200 N.W. 965
• Parties: KIRBY et al. v. CAREY.
• Court: Michigan Supreme Court

229 Mich. 129

200 N.W. 965

KIRBY et al.

v.CAREY.

No. 86.

Supreme Court of Michigan.

Dec. 10, 1924.

Error to Circuit Court, Kent County; Willis B. Perkins, Judge.

Action in replevin by Jennie Kirby and another against James Carey. Judgment for plaintiffs, and defendant brings error. Affirmed.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.J. T. & T. F. McAllister, of Grand Rapids (Lombard, McIntyre & Post, of Grand Rapids, of counsel), for appellant.

C. G. Turner, of Grand Rapids, for appellee Jennie Kirby.

L. W. Smith, of Grand Rapids, for appellee Harry Voltz.

SHARPE, J.

On June 14, 1922, the plaintiff Voltz entered into a written contract with Joseph J. Johnson, a dealer in automobiles in Grand Rapids, for the purchase of a Jewett sedan. The price agreed upon was $1,578.50, of which $1,100 was then acknowledged to be paid. This was in fact paid on July 6th by turning in a used car at $500 and payment of $600. The balance was to be paid in 12 equal monthly payments, for which notes were given. Title was reserved in the vendor, under conditions which the parties assume rendered the contract a security. Johnson did not at that time have a sedan to deliver. The serial numbers were therefore left blank.

On August 26th, Johnson assigned his interest in this contract to the plaintiff Kirby for a consideration of about $400. This deal was brought about through Mrs. Johnson, a daughter of Mrs. Kirby, who was employed in Johnson's office, but was no relation to him.

On August 30th Johnson entered into negotiations with the defendant, which resulted in defendant's loaning him $3,100, with which to purchase three Jewett cars. A bill of sale, in the nature of a security, was executed by Johnson on the following day. The serial numbers were also left blank in this. Defendant gave his check to Mr. McAllister, an attorney who was to look after the matter for him, and on September 1st he procured therewith a draft from his own bank for the amount, payable to the order of Paige Sales & Service, and delivered the same to Johnson, with the understanding that Johnson was to wire him the serial numbers of the cars as soon as the purchase was made. This Johnson did on September 2d. He drove the cars he had purchased to Grand Rapids, arriving there on Sunday, September 3d. Monday was Labor Day and a holiday. On September 5th McAllister checked up the numbers sent him with those on the cars, inserted them in the blanks in defendant's bill of sale, and filed it. Upon the arrival of the cars (only one of which was a sedan) in Grand Rapids, Mrs. Johnson, with whom Mrs. Kirby had left the contract, inserted the serial numbers of the sedan in the contract and filed it 30 minutes before the defendant's bill of sale was filed. The sedan was thereafter delivered to Voltz. He paid two of the notes to Mrs. Kirby on September 18th. On October 30th Mr. McAllister, learning that Voltz had the sedan, sent an officer to him, who induced him to deliver it over. Mrs. Kirby brought replevin. Defendant gave bond for the release of the car. It appearing that Voltz had an interest in it he was made a party plaintiff. The case was tried by the court without a jury. The court concluded as matter of law that plaintiffs were entitled to recover, and entered judgment for Mrs. Kirby for $398.76, and for Voltz for $1,179.74, with interest and costs. Certain amendme...