Muir v. Glossbrenner Motors Company

• Decision Date: 23 October 1925
• Citation: 211 Ky. 1
• Parties: Muir v. Glossbrenner Motors Company.
• Court: United States State Supreme Court — District of Kentucky

Page 1

211 Ky. 1

Muir v. Glossbrenner Motors Company.

Court of Appeals of Kentucky. Common Pleas Branch, Third Division.

Decided October 23, 1925.

1. Municipal Corporations — Principal and Agent — Relation Cannot be Shown by Declaration of Agent. — One cannot be shown to be agent of individual or corporation by mere proving by another the statement of one claiming to be agent.

2. Trial — Peremptory Instruction Properly Refused, where Some Evidence to Sustain Cause. — A peremptory instruction to find for defendant is properly refused, where there is some evidence to sustain a verdict for plaintiff.

3. Principal and Agent — Agency Must be Established by Other Evidence than that of Statements of One Claiming to be Agent. — Where court received evidence of statements of third party showing that he was agent of defendant in purchasing an automobile from plaintiff, it should have instructed jury that evidence could not be considered, unless agency was established by some other evidence in the case.

4. Evidence — Not Necessary to Require Notice to Produce Check to be Given Before Allowing Testimony of Contents, where Defendant had Testified it was Lost. — Where defendant testified that check which plaintiff had been allowed to describe was lost, it would have been idle formality to require necessary notice to produce to be given for allowing testimony as to contents.

5. Appeal and Error — Objection to Misconduct of Plaintiff and Attorney Must be Made at Time of Occurrence and Set Out in Bill of Exceptions. — Where misconduct of plaintiff and counsel was not objected to at time of occurrence, and, although set out in motion and grounds for a new trial was not embodied in bill of exceptions, it will not be considered in Supreme Court.

Appeal from Jefferson Circuit Court

A.M. MARRET for appellant.

CHAS. F. TAYLOR and E.R. ATTKISSON for appellee.

OPINION OF THE COURT BY DRURY, COMMISSIONER.

Reversing.

The appellant here was defendant below, and will hereafter be referred to as defendant, while appellee was plaintiff below and will hereafter be referred to as plaintiff. Defendant is seeking here to reverse a judgment for $1,112.10, recovered against him by the plaintiff.

Plaintiff owns a garage on West Broadway in Louisville, Kentucky, and has the agency for the Stutz car. On October 13, 1919, it sold a Stutz touring car, as it said, to Joseph Muir, but the defendant contends that the plaintiff sold this car to W.H. Baker, from whom Muir purchased the car. Anyway, on September 18, 1919, Baker signed a contract with the plaintiff for the purchase of a four-passenger Stutz touring car, and then turned over to the plaintiff one Buick roadster, which belonged to Muir, at the price of $1,100.00, and one Buick touring car which was in the possession of Baker, at the price of $850.00. On October 13, 1919, plaintiff made out a bill to W.H. Baker for the sale of this car and certain accessories, the total being $3,328.35. After crediting that with the two cars traded in, there was a balance of $1,378.35, which was settled by a check of Joseph Muir. Whether that check was given directly by Muir to the plaintiff or by Muir to Baker and by Baker assigned to the plaintiff, is disputed in the evidence.

Muir began to use the Stutz car at once, and on November 11 began to buy supplies for it from plaintiff, and continued to do so for about a year. He did not procure a license for this car until December 10, 1919, when he made an application which was signed and sworn to by Joseph Muir, before M. Hirschfield, a notary public for Jefferson county, Kentucky, and in that application he was asked and answered these questions:

"Q. Has this machine been registered before in this state by you? A. No. (Just purchased.)

"Q. If not, give date of purchase and from whom purchased? A. Jas. Muir, December 5, 1919."

The plaintiff sold the two Buick cars that had been traded in, and of these the touring car was sold to a Mr. Frazier. Some time afterwards it was ascertained that this car had been stolen from one O'Hara, of Indianapolis, Indiana, who recovered the car from Frazier. Thereupon Frazier brought suit against the plaintiff company and recovered the sum of $927.20 and costs. The plaintiff filed a cross-action against Muir, in this suit begun by Frazier, and after Frazier obtained his judgment, the plaintiff here amended its cross-action, and asked judgment against Muir for:

                        The amount of Frazier's recovery .........  $927.20
                        Costs ....................................    34.90
                        Attorney's fee in Frazier suit ...........   150.00
                                                                   ________
                             Total ..........................     $1,112.10
                

for which sum it recovered the judgment mentioned at the outset of this opinion. Plaintiff has lost $1,112.10 as the result of taking in trade this Buick touring car. The question is in this case, should plaintiff recover this sum so lost from Muir or Baker? In other words, when Baker came to the plaintiff and traded him these two old machines in upon the purchase price of the Stutz, was Baker the agent of Muir or was Baker acting for himself? The jury believed that Baker was the agent of Muir, and after the court had entered judgment upon the verdict of the jury, Muir filed motion for a new trial upon eight different grounds.

His first complaint is of the instructions given. By the first instruction, the court told the jury the question in the case was whether the Stutz car was sold to Muir or to Baker. By the second instruction the jury was told that if it believed from the evidence that this car was sold to Baker, in good faith, and that Baker afterwards sold to Muir, the jury should find for Muir. In the third instruction, the jury was told if it believed from the evidence that the car was bought from the plaintiff by W. H. Baker, as the...