MacCallum-Donahoe Finance Co. v. Warren

• Decision Date: 08 November 1922
• Docket Number: 17425.
• Court: Washington Supreme Court
• Parties: MacCALLUM-DONAHOE FINANCE CO. v. WARREN et al.

210 P. 368

122 Wash. 176

MacCALLUM-DONAHOE FINANCE CO. v. WARREN et al.

No. 17425.

Supreme Court of Washington

November 8, 1922

Department 1.

Appeal from Superior Court, Lewis County; Ben Sheeks, Judge.

Replevin by the MacCallum-Donahoe Finance Company against John Doe Warren and another, doing business as Warren Bros., and another. Judgment for defendants, and plaintiff appeals. Reversed with instructions.

George L. Spirk, of Seattle, for appellant.

Fred M Bond, of South Bend, for respondents.

HOLCOMB J.

On February 21, 1920, appellant delivered to Harry Howell, doing business as Savage Sales Company, a Columbia Six automobile which he agreed to purchase under the terms of a conditional sales contract executed by the parties at the time. The purchase price was $1,795.45, payable on demand. The conditional sales contract was filed for record in the office of the county auditor of Lewis county, where the vendee Howell, resided and conducted his business, on February 26 1920, thus being well within the 10-day period required by the statute. Sections 3790 and 3791, Rem. Code. Howell took the automobile to Centralia, Lewis county, and failed to pay anything upon the contract. A little later he failed in business and disappeared. The automobile sold by appellant was found in the possession of one Graham. An action by replevin was instituted against Graham for recovery, but he, having gotten possession of the car from respondents through trade, returned it to respondents, and after demand replevin was then instituted against the respondents for the recovery of possession of the automobile, the conditional sales contract of appellant with Howell having been forfeited for non-compliance with its terms. The sheriff took possession of the automobile, and it was again delivered to respondents upon their furnishing a redelivery bond therefor.

In answer to the complaint respondents denied that appellant was the owner of Columbia Six automobile, model 20D, motor No. 129263, denied the right of appellant to possession, and denied that it was of any greater value than $1,500, and as an affirmative defense alleged that they had the absolute and sole title, and were entitled to the absolute and sole possession at all times, both before the commencement of the action and since, of one Columbia Six automobile, model 20D, motor No. 129263; that appellant, if it ever had any claim to the same, has not one that is enforceable against respondents, one which they knew nothing of, and that the respondents were the sole owners, free from any claim of appellant, and entitled to full possession thereof.

The case was tried to a jury, which returned a verdict for defendants. Motion for a new trial and for judgment notwithstanding the verdict were denied by the trial court, and from a judgment entered upon the verdict this appeal is prosecuted.

Several errors are claimed by appellant, some of which are untenable, but there is one which is meritorious, and which we think must necessarily result in a reversal of the judgment.

Appellant requested and the court refused the following instruction:

'You are instructed that the description contained in the conditional sale contract of the appellant issued to the Savage Sales Company was under the law sufficient to put the defendants upon notice, and, if this description, followed up by inquiry, would have disclosed that the automobile therein referred to was the one which the defendants were purchasing, that the defendants were not bona fide purchasers of the same for value, and were charged with notice of the rights of the plaintiff.'

Instead thereof the court gave the following instruction, which is excepted to by the appellant:

'The plaintiff alleges that it is the owner and entitled to possession of the automobile, and the defendant denies that it is the owner and entitled to the possession. There is also a question raised in the pleadings as to the amount of the value of the machine and the damage for withholding it. You will perhaps have that to consider in determining your case. But in the first place I will say to you that the defendants have introduced evidence for the purpose of showing that this machine now in controversy was not the machine that belonged to the plaintiff, and was not the machine sold and claimed to have been sold by the plaintiff to the Savage Company, and if you should find that this is so you will have no further duty in the case except to return a verdict for defendants, and also to answer one interrogatory that I shall submit to you, that is, as to whether or not it is the same car, or whether it is a different car; but if you do not find--if you are not satisfied--that this is not the car claimed by the plaintiff, that is, if the plaintiff has established by a preponderance of the evidence that it is the same car, then you will have the question to consider as to the value of the car and damage for withholding; and you will also have another question to consider, and that is whether the description in the conditional bill of sale which has been introduced here and recorded, is sufficient to have put the defendants on notice that this might have been the car that the plaintiff owned. The evidence shows a discrepancy in the number, or what I would call a misdescription. The bill of sale gives the car number; that number, as I understand the evidence, is different from the number on the car. I believe I have stated it correctly. That would be perhaps such a misdescription as might or ought to put the defendants in buying the car upon inquiry as to whether this car was sold. And if by reasonable inquiry they could have found out this was the car that had belonged to the plaintiff, they should have taken notice of it. That, I take it, is a question for the jury to determine; in the first instance whether he ought to have made inquiry, and whether by making inquiry he could have found out that this car, although misdescribed, was the car actually sold by the plaintiff to the man Howell or the Savage Company.'

The evidence was that the conditional sales contract taken by appellant and filed in the auditor's...