Smith v. Gray Motor Co.
| Decision Date | 29 October 1926 |
| Docket Number | No. 25350.,25350. |
| Citation | 169 Minn. 45,210 N.W. 618 |
| Parties | SMITH v. GRAY MOTOR CO. et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; W. C. Leary, Judge.
Action by F. J. Smith against the Gray Motor Company and another for conversion of an automobile. Verdict for plaintiff, as against defendant Mercantile Acceptance Company, defendant's motion for judgment notwithstanding the verdict was denied, judgment was entered on the verdict, and defendant appeals. Affirmed.
M. A. Jordan, of Minneapolis (Thomas Kneeland, of Minneapolis, of counsel), for appellant.
William Rochford, of Minneapolis (C. O. Holten, of Minneapolis, of counsel), for respondent.
On May 15, 1924, plaintiff purchased a used automobile from the Gray Motor Company of Minneapolis for the sum of $1,475. He paid $500 on receiving the car and was to pay the remaining $975 in twelve equal monthly installments. He claims that when he gave the Motor Company his check for the cash payment of $500, they presented a blank form as the installment contract for the remaining payments which he signed without reading and in which none of the blanks had then been filled out. Two or three weeks later, the Mercantile Acceptance Company mailed him a notice from Chicago that they had purchased his note of $1,107.72 given to the Gray Motor Company, that the installments must be paid to them and that the first installment of $92.31 would be due on June 15th. Plaintiff wrote asking what the $132.72 added to the $975 was for, but received no reply. Shortly thereafter he sent a check of $81.25 for the first installment to the Gray Motor Company. That company indorsed the check over to the Mercantile Acceptance Company, but the latter company refused to accept it and it was later returned to plaintiff. In July, 1924, the Mercantile Acceptance Company seized the automobile and sold it under a chattel mortgage assigned to that company by the Gray Motor Company and alleged to have been executed by plaintiff to secure the note of $1,107.72.
Plaintiff brought this action against both companies alleging a conversion of the automobile. At the trial he limited his claim of damages to the amount which he had paid on the purchase price. He also abandoned his claim against the Gray Motor Company, as that company had taken no part in seizing or selling the automobile. The action proceeded against the Mercantile Acceptance Company alone, and that company will be intended by the term defendant when used hereafter. The jury returned a verdict for plaintiff and against this defendant. The defendant, without asking for a new trial, made a motion for judgment notwithstanding the verdict. This motion was denied and judgment was entered on the verdict. The defendant appealed.
As defendant rests upon its motion for judgment without asking for a new trial, errors at the trial, whether in the rulings or in the instructions to the jury, cannot be reviewed or considered. The only question for consideration is whether it clearly appears from the record that plaintiff is not entitled to recover. Northwestern Marble & Tile Co. v. Williams, 128 Minn. 514, 151 N. W. 419, L. R. A. 1915D, 1077; Helmer v. Shevlin-Mathieu Lbr. Co., 129 Minn. 25, 151 N. W. 421; Bosch v. C., M. & St. P. Ry. Co., 131 Minn. 313, 155 N. W. 202; Smith v. Minneapolis Street Ry. Co., 132 Minn. 51, 155 N. W. 1046; Hoggarth v. M. & St. L. Ry. Co., 138 Minn. 472, 164 N. W. 658; Mahoney v. St. Paul City Ry. Co., 140 Minn. 516, 168 N. W. 49; National Cash Register Co. v. Merrigan, 148 Minn. 270, 181 N. W. 585; Wyman, Partridge & Co. v. Bible, 150 Minn. 26, 184 N. W. 45.
Defendant presented testimony to the effect that plaintiff executed both the note and the chattel mortgage, and that both were filled out in full exactly as they now are before he signed them. Plaintiff testified that no mention was made of a chattel mortgage at any time, that he had no knowledge of any such instrument and that whatever he signed was a blank form in which neither terms nor amounts had been inserted. The note is lengthy covering nearly two pages of the printed record. Plaintiff admitted that the signature to this instrument was his signature, but was positive that the signature to the chattel mortgage was not his signature. The court instructed the jury to the effect that if the instruments were signed by plaintiff after they had been filled out, as claimed by defendant, defendant was entitled to a verdict; that if they were signed in blank, as claimed by plaintiff, and were subsequently filled out for a greater amount than plaintiff had authorized, they were void and plaintiff was entitled to recover. No objection was made or exception taken to the charge. Instructions to the jury not objected to become the law of the case whether right or wrong. Smith v. Pearson, 44 Minn. 397, 46 N. W. 849; Madden v. Oestrich, 46 Minn. 538, 49 N. W. 301; Bergh v. Sloan, 53 Minn. 116, 54 N. W. 943; ...
To continue reading
Request your trial