Snyder v. Lincoln
| Decision Date | 29 December 1948 |
| Docket Number | 32490. |
| Citation | 35 N.W.2d 483,150 Neb. 580 |
| Parties | SNYDER v. LINCOLN et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Where the owner of personal property is induced by fraud to part with its possession without intending also to part with the title, the transaction is larceny if the person so receiving the possession without the title has at the time a secret intention of converting it permanently to his own use and does so without the consent of the owner.
2. While it is generally true that in larceny the taking must be a trespass against the owner's possession, yet where fraud is practiced to obtain possession, no actual violence is necessary, for the fraud takes the place of violence.
3. One obtaining possession of property by larceny cannot convey good title even to an innocent purchaser for value.
4. The general rule is that where one of two innocent persons must suffer by the acts of a third, he whose conduct, act, or omission enabled such third person to occasion the loss, must sustain it, if the other party acted in good faith without knowledge of the facts, and altered his position to his detriment.
5. However, the foregoing rule has no application in cases where the wrong was accomplished through the instrumentality of a criminal act, it being held in such cases that the crime, and not the negligent act, was the proximate cause of the injury.
6. The Legislature may not validly in a regulatory act under the police power invade the right of contract, impair rights of property, or restrict the courts in the consideration of evidence and the determination of title and ownership of property and contractual rights and obligations.
Levin & Brodkey, of Omaha, for appellant.
Wear Boland & Nye and Robert E. McCormack, all of Omaha, for appellees.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.
This was an action to replevin a car. Tried to the court, jury waived, defendants were awarded a judgment. Motion for new trial was overruled, and plaintiff appealed to this court.
In the final analysis, the primary question presented is whether the car was sold by plaintiff or was stolen from plaintiff. Concededly, if plaintiff sold and delivered the car to a fraudulent vendee as defendants contend, then the law would protect innocent purchasers, and defendants, if within that category, would be entitled recover. On the other hand, if, as plaintiff contends, the car was stolen from plaintiff, then innocent purchasers could acquire no title which the law would protect, and plaintiff would be entitled to recover. We sustain plaintiff's contentions.
As stated in Parr v. Helfrich, 108 Neb. 801, 189 N.W. 281, 282: See also, Sullivan Co. v. Larson, 149 Neb. 97 30 N.W.2d 460.
The opinion in Parr v. Helfrich, supra, also approved a statement appearing in Rowley v. Bigelow, 12 Pick., Mass., 307 23 Am.Dec. 607, to the effect that:
As we view the record, it will be unnecessary to discuss at length or attempt to make specific application of the Colorado statutes relating to the execution and delivery or assignment of certificates of title and certificates of ownership of motor vehicles, or to determine whether or not defendants or either of them were innocent purchasers for value.
Under rules of law heretofore stated, and hereafter recited, our conclusions must be based entirely upon the factual situation appearing in the record.
The evidence is not in dispute. It appears in substance that on August 30, 1947, plaintiff, a licensed used car dealer in Denver, Colorado, was the owner and holder of a valid Colorado certificate of title to a 1946 Chevrolet Aero Sedan, the car involved.
On that date, Saturday afternoon, at about 2:30 p. m., a person unknown to plaintiff but identified as R. Bryan Owen or R. E. Owen, a blond, light-complexioned man, about 29 or 30 years old, 5 feet 9 inches tall, weighing about 175 pounds, and dressed in a United States Navy jacket and blue pants, came upon plaintiff's car lot. There he looked over three or four cars and asked one of plaintiff's salesmen for permission to try out the car in question. It was already serviced for driving, and such permission was granted. Thereupon Owen drove the car away and returned in 10 or 15 minutes. He then said he liked the car but wanted to show it to his wife at a given address in Denver, later found to be fictitious and nonexistent. The salesman hesitated, and Owen offered to leave his check for the purchase price. Whereupon, in the presence of another witness, the salesman told Owen in subatance that he could not and would not accept the check unless it was certified, and that plaintiff could not and would not sell or deliver the car or the title thereto until and unless the check was certified, but that Owen could take the car and show it to his wife if he desired to do so.
No certificate of title or certificate of ownership was ever given or assigned to Owen by plaintiff as required by the Colorado statutes, and he was never given any bill of sale, mileage certificate, or any other paper or document by plaintiff as evidence of ownership or that a contract of sale had been made. Owen simply left his check, without certification, drove the car away, ostensibly to show it to his wife as permitted by plaintiff, and never returned.
Two or three hours after Owen had left, plaintiff notified the Denver Police Department, and on Tuesday, Sunday and Monday Labor Day intervening, plaintiff also notified the Federal Bureau of Investigation. The check was never endorsed or deposited by plaintiff, but on Tuesday, just before 3 p. m., it was learned that there was no such account. Owen had not been apprehended at the time of trial of the case at bar.
On September 5, 1947, R. E. Owen, purportedly from Columbus, Georgia, gave D. B. Pearson Motors of Kansas City, Missouri, an ordinary bill of sale for the car, for which D. B. Pearson gave Owen a check for $1850, which was endorsed 'R E Owen,' and marked paid on September 6, 1947.
Neither D. B. Pearson, doing business as D. B. Pearson Motors, nor defendant Harry Lincoln, doing business as Liberty Car Company, testified as witnesses. However, Jack Lincoln, father of Harry Lincoln, and an employee of his son's company, testified that he purchased the car for his son from D. B. Pearson Motors in Kansas City on September 5, 1947, the same day it was delivered by Owen to D. B. Pearson Motors. A check from Liberty Car Company, by Harry A. Lincoln, payable to D. B. Pearson Motors, for $2125, dated September 5, 1947, marked paid on September 24, 1947, appears in the evidence.
Jack Lincoln testified that at the time he purchased the car he saw the bill of sale given by Owen, but never saw any certificate of title for the car, and that none was then delivered to him. Neither did he inquire who owned the car ahead of Owen. D. B. Pearson told him the certificate of title was then in the North Kansas City Bank as collateral for a loan of money on cars, and that he would get the same and attach it to the Liberty Car Company's check for return when it was cashed. Such statement, if made, was evidently false.
In that connection, the record discloses that on September 20, 1947, R. E. Owen of 1892 Alton, Mascage County, Columbus, Georgia, ostensibly under two signatures appearing to be entirely different from those alike and appearing on his check left with plaintiff, his bill of sale given D. B. Pearson Motors, and his endorsement on the check given to him by D. B. Pearson, made application for Missouri certificate of 'Title Number 910812' without surrendering any title number or attaching the certificate of any dealer or vendor. Therein the applicant gave his 'Source of Ownership' as Kellen Motor Company, 811 Broadway, Columbus, Georgia, for cash, under date of August 17, 1947, which, it will be noted, was 13 days before the car was taken by Owen from plaintiff. However, across the face of the application we find both written and stamped thereover, in large letters, the words 'Cancel,' together with the stamped date 'Sep 22 1947.'
However that may be, the record also discloses that on September 20, 1947 D. B. Pearson Motors, by D. B. Pearson, made application for the issuance of Missouri certificate of 'Title Number 910813' and in doing so 'Surrendered Title Number Ga. B. of Sale.' Therein, the applicant gave its 'Source of Ownership' as R. E. Owen, 1892 Alton, Columbus, Georgia, for cash, under date of September 5, 1947. The 'Certificate of Dealer or Vendor' thereon is not dated, but bears the purported signature of R. E. Owen, which is the same in character as those appearing on the purported application of R. E. Owen for Missouri certificate of 'Title Number 910812' heretofore described. The 'Certificate of Dealer or Vendor' also has written in the left-hand corner thereof 'Subscribed & sworn to before me this 19 day of Sept 1947 Dean B. Pearson.' Also stamped thereon appear...
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