O'neil v. Cheatwood

• Decision Date: 18 March 1920
• Citation: 102 S.E. 596
• Parties: O'NEIL . v. CHEATWOOD.
• Court: Virginia Supreme Court

102 S.E. 596

O'NEIL .

v.CHEATWOOD.

Supreme Court of Appeals of Virginia.

March 18, 1920.

Error to Law and Equity Court of City of Richmond.

Action by L. J. Cheatwood against (Mrs. Hugh M. O'Neil. To review a judgment for plaintiff, defendant brings error. Reversed.

A. H. Sands, of Richmond, for plaintiff in error.

David Meade White and S. A. Anderson, both of Richmond, for defendant in error.

BURKS, J. Cheatwood, in an action of detinue, recovered an automobile from Mrs. O'Neil, and to the judgment of the trial court this writ of error was awarded.

The evidence, so far as it need be recited, presents the following case:

William F. Gordon was, a licensed dealer in automobiles in the city of Richmond on May 1, 1917, and had been engaged in that business for 14 or 15 months prior to that time. His place of business was at 1631 West Broad street. He was the representative in Richmond of the National automobile. About May 1, 1917, he had a National car in the depot, but did not have money enough to pay the draft attached to the bill of lading and gel the car out. He thereupon applied to Cheatwood for a loan of $800 for an hour or so, saying he wished to get the car out, and deliver it to Mr. Dominski, to whom he had sold it, and would return the money. Cheatwood made the loan; his son attending to it, as he had to leave the city. Ho left the city and was absent! for several days. Upon his return he found a letter from Gordon acknowledging the loan of $S00 and promising to return the sum of $S25 as soon as he sold the car. In this letter, Gordon further says:

"I have a number of prospects for the sale of this car, one of which I can close up to-morrow; but, owing to the fact that it may be a case of trade-in, I will hold the ear subject to your order for a day or two until I can get the best price for same."

Cheatwood testified that nothing was said about any $25 when he made the loan. This letter made Cheatwood uneasy about his loan, and he at once consulted counsel, who advised him that he had no security for his money. In company with his counsel he went at once to see Gordon, and, according to his testimony, Gordon told him he might take the automobile for his debt of $S00, and gave his counsel the make, number, and description of the car. His counsel thereupon prepared a bill of sale of the car from Gordon to Cheatwood, dated May 8, 1917, and it was acknowledged and admitted to record May 10, 1917. The automobile was not removed from Gordon's possession. On May 12, 1917, Gordon sold and delivered the automobile to Mrs. O'Neil, who had no actual knowledge of the bill of sale, for the price of $1,450 cash. Gordon's testimony is to the effect that the cost price of the machine was about $1,200, and that the bill of sale was intended only as a mortgage to secure the loan of $800, and the jury took this view of it, though Cheatwood's testimony was very positive that it was an out-and-out sale of the automobile for the $800 debt. On May 18, 1917, Cheatwood went to Gordon's place of business and demanded possession of the automobile. Gordon mentioned different places at which the car could be found, "and he finally told us late in the evening that it was at Mrs. O'Ncil's." He then went to Mrs. O'Neil's and found the car, claimed it as his, and demanded possession thereof. Possession was refused, and this action was...