Mammoth Garage v. Taylor

• Decision Date: 10 June 1927
• Citation: 220 Ky. 499
• Parties: Mammoth Garage v. Taylor.
• Court: United States State Supreme Court — District of Kentucky

220 Ky. 499

Mammoth Garage v. Taylor.

Court of Appeals of Kentucky.

Decided June 10, 1927.

1. Attachment. — In action to enforce liens for unpaid purchase price of automobiles, where there was no ground for specific attachment under Civil Code of Practice, section 249, discharging general attachment was error, where defendant's evidence disclosed that he had no property in the state subject to execution.

2. Insurance. — In seller's action to enforce liens for unpaid purchase price of automobiles, in which defendant by counterclaim sought recovery for seller's failure to keep automobiles insured, recovery for seller's alleged breach thereof was not authorized, where chattel mortgage did not require seller to keep them insured.

3. Insurance. — Where chattel mortgage did not require seller of automobiles to insure them, to authorize recovery for seller's failure so to insure, it was incumbent on buyer to allege and prove that seller's agreement to insure was by fraud or mistake left out of contract.

4. Trial. — In action to enforce liens for price of automobiles, instruction that, if plaintiff and another, at time of making of sales contract, were partners trading under fictitious name, to find for defendant,

was error, where evidence showed that at time of sale plaintiff was sole owner of garage business.

5. Names. — Ky. Stats., section 199b-1, requiring one doing business under fictitious name to file certificate, is penal in nature, and does not make contracts of such person unlawful unless certificate is filed.

Appeal from Bell Circuit Court.

JAMES M. GILBERT for appellant.

N.R. PATTERSON for appellee.

OPINION OF THE COURT BY TURNER, COMMISSIONER.

Reversing.

In February and March, 1924, appellant, Webb, doing business as the Mammoth Garage, sold and delivered to appellee two automobiles, one in each of those months.

A cash payment was made upon each of them at the time, and a chattel mortgage executed setting forth the terms of sale, the time and amount of payment of the deferred installments, together with the undertaking by the purchaser to keep the two motor vehicles insured against fire and theft for not less than the total of the unpaid installments, and with a provision precipitating the due date of all installments if any one of them was not paid at the time fixed. In each instance the estimated cost of insurance was embraced in the purchase price.

In the fall of 1924 this ordinary action was filed seeking to enforce a lien for the unpaid purchase price, being a balance in one case of $233.50, and in the other of $273.12.

An answer and counterclaim was filed, admitting the amount of the unpaid purchase price in each instance, and alleging as to one of the motorcars that it was practically destroyed by fire of unknown origin while in defendant's possession, and "that he thereupon carried said automobile to plaintiff's place of business and left same there with the plaintiff, and requested the plaintiff to collect and distribute the fire insurance thereon." He then alleges that it was provided in the contract that defendant should keep the motor vehicle insured against fire for enough to pay the balance of the purchase price, and that at the time of the making of the contract he paid plaintiff enough money for that purpose, and plaintiff agreed to pay for said fire insurance, and agreed that the insurance would be maintained and kept up by plaintiff and asked that the plaintiff be required to disclose whether he had effected such insurance and whether he had collected same.

As to the other automobile, it is alleged that defendant had wrongfully and without right procured and had served upon defendant an order of attachment, wherein he sought to specifically enforce a lien thereon, and that accordingly said motorcar was taken from defendant, and defendant deprived of the use thereof, and placed in the garage of one Hoskins, and he prays the cause be transferred to the equity docket, for a disclosure as to the insurance, and that he recover of the defendant damages for the wrongful taking of the second car.

A demurrer to the answer and counterclaim was filed, which, so far as this record shows, was never acted upon; but on January 21, 1925, an order was entered reciting, "The answer and counterclaim having been stricken, the defendant is given time to amend."

About that time J.G. Hoskins filed his petition to be made a party asserting a claim and lien against one of the cars for repairs, etc., placed thereon and asking that the same be sold. At the time the answer and counterclaim was...