Morsch v. Lessig

• Citation: 45 Colo. 168,100 P. 431
• Parties: MORSCH v. LESSIG.
• Decision Date: 01 March 1909
• Court: Supreme Court of Colorado

100 P. 431

45 Colo. 168

MORSCH v. LESSIG.

Supreme Court of Colorado

March 1, 1909

Appeal from District Court, City and County of Denver; Jesse G Northcutt, Judge.

Replevin by W. J. Morsch against Isabella Lessig. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

J. C Murray and M. H. Kennedy, for appellant.

Geo. S Redd, Geo. Stidger, and John B. Hutchinson, for appellee.

CAMPBELL J.

This is an action to recover the possession of a 'bike sulky.' The only defense is that, while the vehicle was in possession of G. C. Kern, under such circumstances as to justify the inference of his ownership, he pledged it to defendant for $56 due her from him for board and $10 in money, which she lent him. The material facts are that plaintiff, W. J. Morsch, who resides in Douglas, Wyo was the owner of the sulky. About the 1st of June, 1904, being also the owner of two race horses and personal property used therewith, Morsch sent the horses and their outfit to Overland Park in Denver in custody of G. C. Kern, who was his employé, and the trainer and caretaker of his horses. On his arrival at Overland Park Kern engaged board of defendant, who was keeping a boarding house in the neighborhood, largely patronized by caretakers and trainers of race horses which were driven at the park. The defendant did not know plaintiff, but furnished Kern board and lent him money upon the supposition that Kern was the owner of the horses, solely because he was in possession. She never made any inquiry to ascertain the ownership, although she knew that the general custom was that the actual possession of such property during the racing season was not in their owners, but in trainers and caretakers. Kern remained at the park until the middle of October, 1904, and when he was about to leave, being indebted to defendant for board in the sum of $56 and $10 in money then lent him to be used, as he said, in buying feed for his horses and defraying his expenses in returning to Wyoming, he left the sulky with her as security for his debt. Morsch was present at Overland Park during the season for a few days about the middle of July or early in August, although his presence was unknown to defendant. Some of the witnesses who testified for plaintiff said that Kern represented himself as the owner of the race horses during the summer. When plaintiff was here, as testified to by one of plaintiff's witnesses, Kern told him Morsch was the owner. The sulky in controversy was not used by Kern in driving or training plaintiff's horses. It was shipped by the manufacturers from Aurora, Ill., to Denver, on plaintiff's order, and the testimony is not altogether harmonious whether it was consigned to plaintiff or Kern. Some of the witnesses say that it was shipped to Kern; others that it was consigned directly to plaintiff. This, however, we do not consider important. There is no testimony that plaintiff furnished the board, or lent the money, to Kern upon the strength of his ownership of this sulky, for it appears that she did not know that he was in possession of it, or claimed to own it, until he pledged it to her at the time he was preparing to leave, after the bill for board was incurred and the money lent, and it is doubtful, too, if Kern ever was in actual possession of it. There is no evidence which tends to show that plaintiff occupied any such position in relation to his property that he knew, or as a prudent man ought to have...