Motor Car Sales Company v. Brown

• Decision Date: 09 February 1924
• Docket Number: 24,514
• Citation: 223 P. 309,115 Kan. 344
• Parties: MOTOR CAR SALES COMPANY, Appellant, v. MYRTLE BROWN et al., Appellees
• Court: Kansas Supreme Court

223 P. 309

115 Kan. 344

MOTOR CAR SALES COMPANY, Appellant, v. MYRTLE BROWN et al., Appellees

No. 24,514

Supreme Court of Kansas

February 9, 1924

Decided January, 1924.

Appeal from Sedgwick district court, division No. 3; JESSE D. WALL judge.

Judgment reversed and granted.

SYLLABUS

SYLLABUS BY THE COURT.

REPLEVIN--Evidence--Lost Letters--No Foundation Laid for Secondary Evidence--Secondary Proof Erroneously Admitted. Agency cannot be proved by the declarations of the supposed agent, nor by secondary proof of the contents of an unauthenticated letter where there has been no effort made to obtain primary evidence of the contents of the letter.

Thomas C. Wilson, Henry Lampl, and Zoland Rosenbloom, all of Wichita, for the appellant.

George McGill, Victor J. Rogers, and James A. Conley, all of Wichita, for the appellees.

OPINION

MARSHALL, J.:

The plaintiff commenced this action to recover the possession of a Jordan roadster automobile from defendant Myrtle Brown. The plaintiff based its right to recover on a chattel mortgage on the automobile given by defendant Nicodemus. Judgment was rendered in favor of Myrtle Brown who had possession of the car, and the plaintiff appeals.

Plaintiff was a corporation engaged in selling automobiles in El Paso, in El Paso county, Texas. Defendant Nicodemus was engaged in the automobile business at Clovis, in Curry county, New Mexico. The plaintiff sold the car in controversy to Nicodemus and in part payment took notes secured by a chattel mortgage on the car. The chattel mortgage was recorded in El Paso county Texas, and in Curry county, New Mexico. Defendant Myrtle Brown purchased the car from Nicodemus at Clovis and paid him the full purchase price therefor. Four hundred fifty dollars became due on the notes to the plaintiff and remained unpaid.

The case turns on the agency of Nicodemus to sell the car for the plaintiff. It is contended that there was no competent evidence to prove that agency. There was evidence which tended to show that, over Nicodemus' place of business in Clovis, there was a sign which read "Motor Inn Sales Company," "Jordan & Packard Sales House," or "Sales Room"; that at the time Myrtle Brown purchased the car from Nicodemus a conversation was had between them in which she asked him concerning his agency to sell the car and to which he responded that he was such an agent and invited her into his office to see some letters which he had received from the plaintiff; that she went into the office and saw the letters; that the letters were written on stationery with the name of the plaintiff printed thereon that they were signed "Motor Sales Company"; and that the envelopes in which the letters came bore the postmark "El Paso, Texas." Without any foundation for the introduction of secondary evidence, without further identification of the letters, and without proof of signature to the letters, she was permitted to testify that one of them urged Nicodemus to be more diligent in selling cars and asked him if he could use another shipment. Another witness, who was with Myrtle Brown when she purchased the car, testified that Nicodemus said he was representing the Motor Car Sales Company of El Paso, Texas. All of that evidence was objected to on the ground that the agency of Nicodemus could not be proved by his declarations; that the evidence of Myrtle Brown concerning the contents of those letters was not the best evidence; and that she had not shown herself qualified to answer the questions. There was no other...