Rosenthal v. Whitehead
Decision Date | 18 April 1966 |
Docket Number | No. 21055,21055 |
Citation | 413 P.2d 909,159 Colo. 565 |
Parties | Joe ROSENTHAL, Plaintiff in Error, v. William C. WHITEHEAD, Defendant in Error. |
Court | Colorado Supreme Court |
Paul Snyder, Castle Rock, for plaintiff in error.
Hiester, Tanner & Clanaham, Charles B. Lindley, Denver, for defendant in error.
This writ of error presents a dispute between Joe Rosenthal and William Whitehead with reference to the ownership and right to possession of a certain Kramer diesel tractor.
Succinctly stated, the controversy stems from the fact that the tractor in question was purportedly pledged to Whitehead by one Riordan at a time when there was a chattel mortgage of record on the tractor in favor of Rosenthal.
Riordan and his associate, Morrison, obtained a personal loan of some $1,300 from Whitehead, an Arapahoe County rancher, and in return therefor executed and delivered to Whitehead three promissory notes totaling $1,500. It was as security for the repayment of these three notes that Riordan and Morrison purportedly pledged the tractor to Whitehead. When Riordan and Morrison defaulted in the payment of these three notes, Whitehead brought an action in foreclosure against them, seeking not only a money judgment but also an order that the 'pledged' tractor be sold by the sheriff at public sale with the proceeds of such sale to be then applied on the indebtedness of Riordan and Morrison to him. Default judgment was duly rendered against Riordan and Morrison in favor of Whitehead and the sheriff was directed to sell the tractor at public sale.
Thereafter, Rosenthal, apparently unaware of Whitehead's foreclosure proceeding, brought an action in conversion against Whitehead, alleging that he (Rosenthal) was the owner of the tractor and entitled to the possession thereof, and that Whitehead had converted the same to his own use without any 'right or justification.' Rosenthal sought damages in the sum of some $4,800.
Upon becoming aware of the pending foreclosure action theretofore brought by Whitehead, Rosenthal sought and obtained permission to intervene in that proceeding. Without objection the issues framed by the complaint in intervention and the answer thereto were consolidated for the purposes of trial with the conversion suit. A trial to the court culminated in a total victory for Whitehead, to the end that the trial court found in favor of Whitehead and against Rosenthal both as to the latter's conversion suit and his complaint in intervention. Rosenthal now seeks reversal of these adverse judgments.
In essence, the trial court's findings were that Riordan and his running mate, Morrison, were agents for Rosenthal with the authority to 'sell or mortgage' the tractor to Whitehead, and that under these circumstances Rosenthal's chattel mortgage was not valid and enforceable against Whitehead as concerns the tractor then in his possession.
It is at once to be noted that though the trial court found that Riordan and Morrison were agents for Rosenthal with either the actual or apparent authority to 'sell or mortgage' the tractor, there was No finding that Riordan and Morrison had any authority, be it express or implied, to Pledge the tractor. As we read the record, it is very doubtful that there is competent evidence to support the finding that Riordan and Morrison were agents for Rosenthal with either the express or implied authority to 'sell or mortgage' the tractor. Be that as it may, we find absolutely nothing, however, which would even remotely tend to indicate that Riordan and Morrison had any authority whatsoever to Pledge the tractor as security for the repayment of their personal loan from Whitehead.
The general rule is that an agent has the authority to pledge his principal's property only where such authority is conferred expressly or arises upon the 'clearest and most positive implication.' See 2 C.J.S. Agency § 113, p. 1307.
In a like vein it is equally well-settled that a person with authority to sell his principal's chattel usually has no apparent authority or implied authority to pledge the goods, either in his own interest or in the interest of his principal, in the absence of any circumstance involving some element of estoppel. And similarly it is stated that the power to mortgage does not include by implication the power to pledge. See in this general regard Silberfeld v Solomon, 70 Colo. 413, 202 P. 113; Morsch v. Lessig, 45 Colo. 168, 100 P. 431; 49 A.L.R.2d p. 1271; and 3 Am.Jur.2d pp. 524--525.
Assuming then for the sake of argument that there is evidence to support the finding that Riordan and Morrison were agents for Rosenthal with actual or apparent authority to 'sell or mortgage' the the tractor, there is still No evidence which would establish, or even begin to establish, that they had any authority to Pledge the tractor. Such then being the case, it must follow--as does the night the day--that Whitehead did not acquire any right, title or interest of any nature in and to the tractor as a result of his dealings with Riordan. This is so for the reason that Riordan, in a very real sense, had no more right to pledge the tractor to Whitehead than, for example, would a thief. Had a thief pledged the tractor to Whitehead, it would be quite clear that Whitehead would have acquired no interest in the tractor. And Riordan having no authority--be it express or implied[159 Colo. 570] --...
To continue reading
Request your trial- Lakeview Associates, Ltd. v. Maes
-
General Electric Credit Corp. v. RA Heintz Const. Co.
...all rights to the 71's, that Fincham lost all rights to the proceeds of the sale of the collateral, the 65's. Rosenthal v. Whitehead, 159 Colo. 565, 413 P.2d 909, 912 (1966), supports the view that legal title passed to Ingersoll on the breach of the mortgage, but it does not support the ar......
- Weil v. Smith
-
Rosenthal v. Whitehead, 22711
...over a tractor has been before this Court. For the general background out of which this controversy arose, see Rosenthal v. Whitehead, 159 Colo. 565, 413 P.2d 909. In that case we determined as a matter of law that Whitehead did convert to his own use the tractor in question, and the case w......