Moore v. Ellison
| Decision Date | 14 November 1927 |
| Docket Number | 11686. |
| Citation | 82 Colo. 478,261 P. 461 |
| Parties | MOORE v. ELLISON. |
| Court | Colorado Supreme Court |
Rehearing Denied Nov. 14, 1927.
Department 2.
Error to District Court, City and County of Denver; Samuel W Johnson, Judge.
Action by I. O. Moore against Homer A. Ellison. Judgment for defendant, and plaintiff brings error.
Affirmed.
John P. James, of Denver, for plaintiff in error.
Charles Ginsberg and M. S. Ginsberg, both of Denver, for defendant in error.
The plaintiff in error (plaintiff below) sued to recover from the defendant the possession of an automobile, claimed by the plaintiff by virtue of a chattel mortgage executed by one Harvey. The mortgage was recorded, and was lawfully extended several times. While the mortgage was in force, the defendant bought the automobile from Harvey without actual notice of the mortgage. His attorneys admit that the mortgage, by its terms, not only did not permit a sale, but expressly provided that the automobile should not be sold without the written consent of the mortgagee. They contend, however, that the mortgaged property was part of Harvey's stock in trade and therefore that the mortgage was void as to the defendant. The trial court found for the defendant. Hervey was a retail automobile dealer, carrying on his business at 712 Broadway in Denver, where he kept a stock of automobiles and sold them in the regular course of trade. When he borrowed the money from the plaintiff, he represented that the automobile was to be used as a demonstrator. The plaintiff consented to its use as such, but did not consent to a sale of the automobile. The mortgage described the automobile as 'now located' at 712 Broadway, and required it to be 'maintained' there.
When the defendant made the purchase, this automobile and others were in Harvey's salesroom, at 712 Broadway, the place designated in the mortgage. This automobile had been in that salesroom continuously for three or four weeks next prior to its purchase by the defendant. When she took the mortgage, the plaintiff knew that Harvey was in the automobile business, selling automobiles. She testified that she did not know that 712 Broadway was Harvey's showroom, or salesroom. After making the loan, she never 'checked up' on the automobile to see where it was. After taking the mortgage, she left it with one Startzell, who was connected with the Federal Service Corporation, at whose office the mortgagor's note was made payable. Startzell kept the mortgage at the office of that company, and, at the plaintiff's request, extended the mortgage 2 or 3 times. During all that time Startzell knew that Harvey was engaged in the retail business of selling automobiles and that his showroom, or salesroom, was at 712 Broadway. These facts support the judgment. In the circumstances, the knowledge of Startzell is to be imputed to the plaintiff. The plaintiff expressly permitted the automobile to be kept at...
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