McLagan v. Granato

• Decision Date: 03 January 1927
• Docket Number: 11571.
• Parties: McLAGAN v. GRANATO.
• Court: Colorado Supreme Court

252 P. 348

80 Colo. 412

McLAGAN v. GRANATO.

No. 11571.

Supreme Court of Colorado, En Banc.

January 3, 1927

Error to District Court, Pueblo County; James A. Park, Judge.

Action by Bill Granato against George McLagan for the conversion of an automobile. From a judgment for plaintiff, defendant brings error and moves for supersedeas.

Supersedeas denied, and judgment affirmed.

M. G. Saunders and E. F. Chambers, both of Pueblo for plaintiff in error.

S Harrison White, of Denver, and E. C. Holt, of Pueblo, for defendant in error.

DENISON J.

Granato had a verdict and judgment against McLagan for taking and converting an automobile, and the latter brings error and moves for supersedeas. The judgment must be affirmed.

One Olson was a dealer in automobiles with a garage and salesroom in Pueblo. One Bronker had a storage garage next door. Olson bought five automobiles for sale. He borrowed money of McLagan to pay for them and gave a chattel mortgage to secure the note. The mortgage provided for retention of possession by the mortgagor, who displayed them for sale in his said salesroom. A few days later the defendant demanded possession, and by his direction Olson put them in Bronker's garage, where defendant arranged with the proprietor to give them dead storage. Defendant then put a tag on each steering wheel stating that that machine was his property as mortgagee. He made some kind of arrangement with Olson by which Olson might sell the cars by payment on each sale of a proportionate part of the mortgage note. Olson had free access to the cars as they stood in Bronker's garage. There is no evidence that Bronker was instructed to withhold them from him or any one else.

There is evidence that Granato's son, who bought the car in question for his father, found it in Olson's salesroom on display for sale, and that it was demonstrated to him on the street by Olson himself or his salesman. Granato bought it and paid some money, traded in a Buick car, and gave his notes for the balance; there is evidence that McLagan took the machine from him and there is no dispute that he converted it to his own use by taking possession of it and selling it under the mortgage.

The above evidence was enough to support the verdict and enough to overcome the objection to some of the instructions that there was no evidence on which to base them. It is enough to justify the jury in finding that McLagan consented to or acquiesced in the possession of the auto by Olson at least for the purpose of demonstration for sale, which is commonly known to be necessary and customary, whereas the possession by a chattel mortgagee must be open, visible, unequivocal and continuous. If the facts call equally for the conclusion of possession by either of two persons the possession of neither is unequivocal, and if one has possession now and the other then it is not continuous in either. Without such possession by McLagan the provision for possession of the cars for sale by the mortgagor made the mortgage void. Wilson v. Voight, 9 Colo. 614, 13 P. 726; Motor Finance Co. v. Smith, 72 Colo. 150, 210 P. 73.

The plaintiff in error, however, makes four other points against the judgment which we shall consider.

1. Each side moved for a directed verdict. We have several times held that this amounted to a submission of the case to the court (Butts v. Sauve, 79 Colo. 317, 245 P. 713; McGhee Inv. Co. v. Kirsher, 71 Colo. 137, 204 P. 891), and so it is now claimed that the verdict and the judgment thereon are invalid, but, since both sides went to the jury without objection on this score, we think neither has ground to complain.

2. It is objected that defendant's attempt to show whether plaintiff had been sued on the notes he gave Olson for the car was rejected by the court, but we think the court was right. The plaintiff's case was ownership, possession taking, and conversion. What had the said evidence for or against any of them? Nor can we...