Snyder v. Lincoln

• Decision Date: 21 November 1952
• Docket Number: No. 33180,33180
• Citation: 55 N.W.2d 614,156 Neb. 190
• Parties: SNYDER v. LINCOLN et al.
• Court: Nebraska Supreme Court

Page 614

55 N.W.2d 614

156 Neb. 190

SNYDER v. LINCOLN et al.

No. 33180.

Supreme Court of Nebraska.

Nov. 21, 1952.

Syllabus by the Court.

1. When this court determines the law of the case on appeal, the trial court is bound thereby and its judgment in accordance therewith will not ordinarily be disturbed on a subsequent appeal.

2. The decision of an appellate court becomes the law of the case and the legal effect of evidence once determined will not be reconsidered here on a second appeal where there has been no material change in the evidence on the second trial.

3. Findings of the court in a law action in which a jury is waived have the effect of a verdict of a jury and will not be disturbed unless clearly wrong.

4. A certificate of title to a motor vehicle, issued pursuant to section 60-105, R.R.S.1943, provides the exclusive method of conveying title to a motor vehicle but it is not conclusive of ownership.

5. The admission of incompetent evidence in a law case tried to the court without a jury is immaterial if the judgment is supported by sufficient competent evidence.

Levin & Brodkey, Omaha, for appellant.

Wear & Boland, Omaha, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CARTER, Justice.

This is an action in replevin whereby the plaintiff seeks to gain possession of a Chevrolet automobile from the defendants Harry Lincoln, doing business as the Liberty Car Company of Omaha, Nebraska, and Chauncey Eugene Wilson. A jury was waived and the case tried to the court. The trial resulted in a judgment dismissing the petition and a finding that defendant recover from plaintiff the sum of $2,200 plus interest in the amount of $550 and the costs of the action. Plaintiff appeals.

This is a third appeal. The two former appeals were disposed of by opinions of this court. Snyder v. Lincoln, 150 Neb. 580, 35 N.W.2d 483; Snyder v. Lincoln, 153 Neb. 611, 45 N.W.2d 749, 754. The general factual situation is recited in those opinions and will not be repeated here except as necessary in dealing with the assignments of error relied upon. The defendant Lincoln was dismissed as a party defendant at the close of the second trial. No appeal was taken from that order. It became final as to him.

Appellant operated the Denver Car & Truck Market in Denver, Colorado. On Saturday, August 30, 1947, a stranger came to appellant's place of business to buy an automobile. After finding one he liked he stated he desired to show it to his wife who was staying at some distant point in the city. The stranger, who gave his name as R. Bryan Owen, gave a check for $2,499, the full purchase price of the car. Owen was then permitted to drive the car away. It was approximately 3 P.M. The banks were closed. Monday was Labor Day and consequently a bank holiday. The car was never returned. The check was worthless, a fact which was discovered when it was presented for payment on September 2, 1947. The details of the transaction, the conflicting stories told by appellant, and his conduct following the loss of the car are meticulously set forth in the opinion on the second appeal. The primary issue is, of course, whether or not the car was sold to R. Bryan Owen with the intention of conveying the title thereto.

There can be no doubt that the law of Colorado is applicable to this part of the transaction. We held in the second appeal of this case that the Colorado law is: 'A purchaser of an automobile in that state may acquire title without complying with the law thereof on the subject of the transfer of title of motor vehicles. Noncompliance may subject the buyer to a penalty, but his title to the vehicle, the subject of the sale, is not affected by his omission or violation.' After a rehearing this statement was ahdered to by this court. Appellant again challenges the correctness of this holding. This he is not permitted to do. It has become the law of the case under numerous decisions of this court. In re Estate of Shierman, 132 Neb. 45, 270 N.W. 841; De Lair v. De Lair, 148 Neb. 393, 27 N.W.2d 540; Floyd v. Edwards, 152 Neb. 673, 42 N.W.2d 292.

Appellant devotes considerable space in his brief to the proposition that his evidence is direct and uncontroverted, and far more worthy of belief than that of appellee. These are questions to be determined by the trier of the facts which in this case was the court, a jury being waived. There is evidence in the case which, if believed, would sustain a finding that appellant sold the car to Owen with intent to convey the title. He accepted Owen's check and permitted him to drive the car away. It is possible that appellant did not consider the sale completed because the details as to a written title had not been completed. This does not preclude a finding under the rules announced in the opinion on the second appeal that appellant intended to pass the title and accepted a check for $2,499 as payment for the car. Appellant attempted to cash the check. If it had been paid could anyone doubt that the sale would have been considered consummated? The conduct of appellant and exhibits offered in evidence tend to sustain appellee's position. It is true that some of this evidence was discredited, as was some that was offered by the appellant. The weighing of the evidence was for the court, and its finding in a jury case will not be interfered with where there is competent evidence to support it. Western Land Roller Co. v. Schumacher, 151 Neb. 166, 36 N.W.2d 777; Foltz v. Brakhage, 151 Neb. 216, 36 N.W.2d 768. The evidence was substantially the same on this trial as at the second. On appeal, after the second trial, the judgment was reversed and the cause remanded for a new trial because of errors occurring during the trial to the jury. This is in effect a holding that the case was one for the jury. Kline v. Metcalfe Construction Co., 148 Neb. 357, 27 N.W.2d 383. In fact it was specifically held in the second appeal as follows: 'The challenge of appellant to the sufficiency of the evidence to justify and require the submission of this case to the jury to determine whether he had made a sale of the automobile to Owen, or whether he had come into possession of it as appellant claims by larceny, cannot be sustained.' We do not depart from that conclusion. There is evidence to sustain the trial court's findings and, there being a conflict of evidence, we cannot say that the trial court was wrong. Albers v. Ziegler, 151 Neb. 408, 37 N.W.2d 590.

The appellant contends that, even if this court concludes that the evidence is sufficient to support a finding that appellant had actually sold and delivered the automobile to Owen but was induced to do so by Owen's fraud in giving a 'no-account' check in payment of the same, still under the law of Colorado the legal title to the automobile did not pass to Owen. The law of Colorado seems to be that where property is sold to be paid for in cash on delivery and the buyer pays for the same with a bad check, no title to the property passes to the purchaser. First State Bank v. Kohl, 79 Colo. 620, 247 P. 571; Johnston v. First Nat. Bank, 108 Colo. 188, 115 P.2d 56. Even though this be true, it is still a question of fact as to whether or not the sale was for cash. The evidence shows that appellant's salesman said to Owen that only cash or a certified check would be acceptable as payment. But there is evidence that Owen was permitted to take the car when he left a check that was not certified in payment for the car. There can be little doubt under the evidence adduced that, if the check had been paid when the bank opened on the Tuesday following, the sale would have been considered complete. We think there is evidence to sustain the finding of the trial court that appellant, or someone acting for him, accepted the check as payment and did not insist upon...