Sheridan v. Dudden Implement, Inc.

• Decision Date: 28 December 1962
• Docket Number: No. 35274,35274
• Parties: Thomas M. SHERIDAN d/b/a Sheridan Chevrolet & Implement Co., Appellee, v. DUDDEN IMPLEMENT, INC., a Corporation, Appellant.
• Court: Nebraska Supreme Court

Page 64

119 N.W.2d 64

174 Neb. 578

Thomas M. SHERIDAN d/b/a Sheridan Chevrolet & Implement Co., Appellee, v. DUDDEN IMPLEMENT, INC., a Corporation, Appellant.

No. 35274.

Supreme Court of Nebraska.

Dec. 28, 1962.

Syllabus by the Court

1. The doctrine of subrogation includes every instance in which one person pays a debt for which another is primarily liable, and which in equity and good conscience should have been discharged by the latter, so long as the payment was made under compulsion or for the protection of some interest of the one making the payment and in discharge of an existing liability.

2. Ordinarily an assignment is not essential to the enforcement of a right of subrogation.

3. An agreement in order to result in a novation, must contain two stipulations: One to completely extinguish an existing liability, and the other to substitute a new one in its place.

4. Under section 36-207, R.R.S.1943, where the vendee is a nonresident of Nebraska, the filing of a conditional sale contract covering personal property in the office of the county clerk in the county where the property is located gives constructive notice of the conditional sale contract to a purchaser without actual notice.

Hastings & Wanek, Grant, Firmin Q. Feltz, Ogallala, for appellant.

McGinley, Lane, Mueller & Shanahan, Ogallala, W. C. Conover, Franklin D. Carroll, Grant, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

CARTER, Justice.

Plaintiff brought this action in replevin to recover possession of a grain harvesting machine referred to in the record as a combine. The defendant denied generally. The jury found for the plaintiff and defendant has appealed.

The evidence shows that Thomas M. Sheridan, plaintiff, was engaged for many years in the implement business at Sutton Nebraska, under the name of Sheridan Chevrolet & Implement Co. On or about May 29, 1958, Sheridan sold the combine here involved to Willard J. Levander for the sum of $7,300, $5,000 of which was to be financed by Sheridan. The transaction was not to be closed and the necessary instruments executed until the combine was delivered. Employees of Sheridan delivered the combine from a point where it was procured in Missouri to Levander at Meadow Grove, Kansas, several weeks later. The employees not having completed the transaction upon the delivery of the combine, Sheridan sought out Levander in Kansas, procured the down payment, and accepted a conditional sale contract providing for payments of $5,375.83 before title was to pass. Sheridan assigned the conditional sale contract to General Motors Acceptance Corporation with recourse. Shortly prior to August 7, 1958, Sheridan learned that the conditional sale contract had no been filed for record. He sought out Levander and accepted a chattel mortgage from him on the combine bearing the date of August 7, 1958, which he filed for record in the office of the county clerk of Scotts Bluff County, Nebraska. Sheridan testified that he took the chattel mortgage to protect himself if he was called upon to pay the balance due on the conditional sale contract under his assignment to General Motors Acceptance Corporation with recourse. Sheridan was later called upon and did pay the balance due on the conditional sale contract to the General Motors Acceptance Corporation. The latter failed to return the conditional sale contract to Sheridan, its district representative testifying that it had either become lost or mistakenly sent to Levander.

On October 31, 1958, Sheridan and one Selvy, the district representative of General Motors Acceptance Corporation, personally checked the chattel mortgage records in Scotts Bluff County, Nebraska, and found that the conditional sale contract was not filed for record. On the same day, through information furnished by Levander, they found the combine on a farm 5 miles west of Minatare in Scotts Bluff County, Nebraska. The combine was still on this farm at 5:30 p. m., on this day. On the same day the conditional sale contract was filed for public record in Scotts Bluff County.

On December 1, 1958, the defendant, Dudden Implement, Inc., traded a truck and trailer to Levander for two combines, one of which is the subject of this action. The trade was made at Brush, Colorado, where the combines were then located and where Levander was living. Defendant checked the records of Morgan County, Colorado, the county in which Brush is located, and found no liens of record. Defendant sold the combine but obtained it back when Sheridan's claimed interest was made known to it. It is the contention of defendant that it had no knowledge of any interest in the combine and that the filing of the conditional sale contract in Scotts Bluff County was invalid for the purpose of giving constructive notice under the recording statutes.

Levander was engaged in custom harvesting in Kansas and Nebraska. There is sufficient evidence to sustain a finding that Levander was a resident of Brush,...