Shanks v. Callahan, 7595

• Citation: 232 So.2d 306
• Decision Date: 14 April 1969
• Docket Number: No. 7595,7595
• Parties: Robert L. SHANKS v. Maxie C. CALLAHAN et al.
• Court: Court of Appeal of Louisiana (US)

Page 306

232 So.2d 306

Robert L. SHANKS v. Maxie C. CALLAHAN et al.

No. 7595.

Court of Appeal of Louisiana, First Circuit.

April 14, 1969.

Benjamin Harvey, Baton Rouge, for appellant.

W. D. Atkins, Patsy Jo McDowell, Baton Rouge, for appellees.

Before LOTTINGER, ELLIS and BAILES, JJ.

LOTTINGER, Judge.

This is a suit by the plaintiff, Robert L. Shanks, praying for a temporary restraining order restraining the Sheriff of the Parish of East Baton Rouge from proceeding with a Sheriff's Sale of a certain 1962 Cadillac automobile, seized by one of the defendants, Associated Budget Plan, Inc., hereinafter sometimes referred to as 'Associated', under a writ of fi. fa. in connection with a judgment obtained by Associated against the other defendant, Maxie C. Callahan. Plaintiff further prays to be declared the owner of this 1962 Cadillac automobile. Associated Budget Plan, Inc., filed a rule to dissolve the temporary restraining order and also prayed for damages, accrued court costs, and attorney's fees. From a judgment in favor of the defendants, plaintiff has appealed.

The record points out that on September 18, 1967, plaintiff-appellant, Robert L. Shanks, executed a bill of sale transferring a 1962 Cadillac to the defendant-appellee, Maxie C. Callahan. The recited consideration in the bill of sale is $500.00. The plaintiff testified that the true consideration for the automobile was $750.00, but was listed as $500.00 at the request of Callahan. Maxie C. Callahan testified that on the day the bill of sale was executed, he gave to Shanks a $150.00 payroll check, a $150 .00 personal check, and $200.00 in cash. This totaled $500.00. Callahan testified that he received a receipt from Shanks for the $500.00. In addition, Callahan gave to Shanks two I.O.U.'s each for $125.00, one payable November 20, 1967, and the other December 20, 1967. As additional security for the I.O.U.'s, Callahan gave Shanks a personal check for $250.00, which was not supposed to be cashed. Callahan never did receive the certificate of title for the automobile.

Associated Budget Plan, Inc., is a judgment creditor of Maxie C. Callahan, and secured a copy of the above bill of sale, which had been executed before a Justice of the Peace, showing Maxie C. Callahan to be the purchaser of a 1962 Cadillac for $500.00. Associated caused a writ of fi. fa. to issue against Callahan, and the Sheriff of East Baton Rouge Parish seized the Cadillac at Callahan's residence. The automobile was advertised for public auction to be sold on January 31, 1968.

On the date of the public auction, plaintiff in the instant proceeding obtained a temporary restraining order restraining and enjoining the public sale on the allegation that he owned the automobile in question. The Trial Court ruled in favor of the defendants, and as such dissolved the temporary restraining order. It awarded to Associated the sum of $32.54 for accrued Court costs, and the sum of $250.00 as attorney's fees, condemning the plaintiff-Shanks to pay these amounts. It is from this judgment that the plaintiff has appealed.

The contention of the plaintiff is that the full purchase price of the automobile was never paid inasmuch as he deposited the $250.00 personal check, and this was returned with the notation 'NSF', or non-sufficient funds. It is further contended by the plaintiff that the bill of sale contains the following language, to-wit:

'This instrument does not become valid until all checks, drafts, or other such medium of payments have been cleared with bank on which drawn and seller is fully satisfied as to all payments.'

Plaintiff contends that since the $250.00 check never cleared the bank, the bill of sale did not become valid and ownership of the automobile never passed to the...