Snyder v. Lincoln

• Decision Date: 19 January 1951
• Docket Number: No. 32887,32887
• Citation: 45 N.W.2d 749,153 Neb. 611
• Parties: SNYDER v. LINCOLN et al.
• Court: Nebraska Supreme Court

Page 749

45 N.W.2d 749

153 Neb. 611

SNYDER v. LINCOLN et al.

No. 32887.

Supreme Court of Nebraska.

Jan. 19, 1951.

Syllabus by the Court.

1. The courts of Nebraska are authorized to take judicial notice of the common law and statutes of another state.

2. A purchaser of an automobile in Colorado may acquire title thereto without complying with the law of that state on the subject of transfer of title of a motor vehicle.

3. In determining the sufficiency of evidence to sustain a verdict it must be considered most favorably to the successful party, any controverted fact must be resolved in his favor, and he is entitled to the benefit of inferences reasonably deducible therefrom.

4. If the owner of personal property is induced by fraud to part with its possession without intending to transfer its title, the transaction is larceny if the person receiving the possession without the title has at the time a secret intention of converting it permanently to his use and does so without the consent of the owner.

5. Where the seller of personal property has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the property provided he buys in good faith, for value, and without notice of the seller's defect of title.

6. The status of a bona fide purchaser from a fraudulent buyer is determined by rules applicable in any other situation where one asserts the right to protection as an innocent purchaser.

7. An innocent purchaser is one who buys property for a present valuable consideration without knowledge sufficient to charge him in law with notice of any infirmity in the title of the seller.

8. When part of a writing is put in evidence by one party, the whole, on the same subject, may be inquired into by the other party.

9. The action of the trial court in excluding testimony of a witness during his direct examination may not be reviewed on appeal in the absence of an offer to prove what it is claimed the testimony would show.

10. The failure of a litigant to object to the introduction of evidence when it is offered precludes him from afterwards complaining that its reception was error.

11. A litigant is entitled to have his theory, when pleaded and supported by evidence, submitted to the jury, and it is error to refuse a proffered instruction warranted by evidence and correctly stating law applicable to the case, unless the matter is covered by instructions given by the court.

Levin & Brodkey, Omaha, for appellant.

Wear & Boland, Omaha, for appellees.

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

BOSLAUGH, Justice.

This is an action of replevin prosecuted by appellant to recover possession of an automobile from appellees. This is a second appeal. The result of the first was a reversal of the judgment and a remand to the district court. Snyder v. Lincoln, 150 Neb. 580, 35 N.W.2d 483. There was another trial in that court. Harry Lincoln was dismissed from the case at the close of the testimony of the appellant. There is no cross-appeal, and the judgment in his favor is final. A verdict and judgment were rendered for Chauncey Eugene Wilson, and a new trial was denied appellant. The contending parties are Irving Snyder, appellant, and Chauncey Wilson, appellee.

The record of this case recites and counsel have extensively discussed a tangled and, in many respects, unusual series of transactions and circumstances of more than slight volume and complexity, but the appeal may properly be disposed of by a consideration of a few of them.

Appellant, as Denver Car & Truck Market, operated a used automobile business in Denver, Colorado. He employed his brother, Max Snyder, as a salesman. About 2:30 p. m. on Saturday, August 30, 1947, a nice-appearing, well-dressed young man about 30 years of age, five feet nine inches tall, weight about 175 pounds, with light hair, wearing blue pants and khaki jacket, came to the place of business of appellant, which consisted of an open lot and a small building used for an office. He was a total stranger, met and talked with Max Snyder, said he wanted to buy an automobile, and that his name was R. B. or R. Bryan Owen. Snyder showed him around the lot and let him take and drive a car for a demonstration. He returned in a short time and said he did not like the car. Snyder showed him another. He took it for a demonstration, returned shortly, said he liked it, and desired to show it to his wife who was in the city at a location considerably removed from the place of negotiation. Snyder hesitated about granting his request 'knowing it was way far out.' They went in the office. Snyder told Owen the price of the car was $2,499.00. He knew what his brother had paid for it and the price that had been put on it. Owen wanted to give a check for the car, said he would leave a check, and if his wife liked it they would take it, but Snyder said he could not accept a check unless it was certified as the banks were closed. Owen wrote a check for $2,499.00, payable to Denver Car & Truck Market, drawn on a Colorado bank, and gave it to Snyder. Snyder then let Owen drive the car away. It had dealer's license plates on it. It was then about 3 p. m. There was a telephone in the office but Snyder made no investigation. The car was not returned.

Snyder testified at the first trial that Owen came on the lot, looked over about three or four cars, gave special attention to a 1946 Chevrolet Aerosedan, the one involved in this suit, asked if he could take it for a trial, Snyder consented, and Owen drove it away and returned in 10 or 15 minutes. They went in the office; Snyder told him the price was $2,499.00; he said he would pay that for the car; he wrote a check on A Denver bank for that amount to the Denver Car & Truck Market as payee, gave it to and left it with Snyder, who told Owen he could take the car; and when Snyder hesitated to consent to the request of Owen to take the car and show it to his wife that was when Owen said that he would leave a check for the car with Snyder.

Snyder did not testify at the first trial as to any act or conversation of Owen concerning any automobile except the one which is involved in this litigation, described as a 1946 Chevrolet Aerosedan, motor number DAM-31926. He testified at the second trial that Owen drove two cars--the first a 1946 Chevrolet tudor, motor number EDA-17675, to which a dealer pink slip (later described) was attached, and the other the car in suit, motor number DAM-31926.

The pink slip was a form on pink paper devised by the Motor Vehicle Division of the Department of Revenue of Colorado available to dealers in automobiles to be completed and used to entitle a purchaser of a motor vehicle to operate it, but 'GOOD ONLY TO REACH THE NEAREST OPEN ISSUING OFFICE where License or Regular Permit can be obtained.' It was in two parts divided by a perforation. The upper or smaller had blank spaces properly designated to show, when properly filled in before being used, the engine number, year, make, model, type, name of purchaser, name of seller, date of sale of the vehicle, and for the signature and place of residence of the purchaser of the car. The bottom or larger part was prepared so that it could be pasted on the outside of the rear window of the car involved. It was required that the date of sale be stamped thereon 'in numerals not less than 3/4 inches in HEIGHT' and there was printed thereon the statement addressed to the dealer: 'This Sticker is to be used only on cars sold by you and only at the time of such sale.' Printed on each part thereof was an identical number. The sticker important in this case was numbered 55816.

While they were in the office Snyder secured a pink slip, had Owen sign it, and they then went on the lot and Snyder fastened the larger part thereof on a 1946 Chevrolet car. Snyder said the motor number of the car was EDA-17675. A photostatic copy of the stub or smaller part of the slip was produced and is in evidence. There are significant facts about this. The date inserted below the designation thereon 'Date of Sale' is 'Sept. 2.' There is testimony that Snyder reported the fact that Owen had not returned the car to the auto theft division of the police department in Denver, and at that time stated, as recorded in the report, that the missing car had no license number but 'May Have Pink Deal.' Permit #55816.' The words 'Pink Deal.' were explained by the person who took and recorded the report as meaning 'pink dealer.' The car with motor number EDA-17675 was a 1946 Chevrolet, and the car Owen took and did not return was a 1946 Chevrolet, but its motor number was DAM-31926. Snyder only says that he had Owen sign the dealer's slip when he was there. He does not say when the stub, the part retained by the dealer, was completed. The date, September 2, given as the date of sale, and other circumstances and permissible inferences may suggest that this was done on September 2, 1947. That was the day Snyder made the report to the police station and the F. B. I.--the third day after the transaction with Owen.

There is evidence that Snyder in his report to the police on September 2 stated that the car was 'Locked. No keys in ignition.' On November 2, 1947, Snyder made a statement to an insurance company, against whom appellant had made claim for the loss of the car on the basis it had been stolen, in which Max Snyder gave this version of the experience with Owen: 'This car was stolen from used car lot at 4400 W. Colfax, Denver, by a man who wanted to buy the car. He wanted to give a check for the car but I told him no to come back Tuesday Sept. 2, and he could have the car. While I was on the other end of the lot, This man drove off in this Chev. On Sept. 2, I notified the police as the car had not been returned.' He said he also notified the F. B. I. on that date.

He testified he reported to Lawrence F....