the Granite Acceptance Corp. v. William Fergnani

• Decision Date: 07 February 1950
• Docket Number: 1176.
• Citation: 71 A.2d 422,116 Vt. 155
• Parties: THE GRANITE ACCEPTANCE CORP. v. WILLIAM FERGNANI
• Court: Vermont Supreme Court

71 A.2d 422

116 Vt. 155

THE GRANITE ACCEPTANCE CORP. v. WILLIAM FERGNANI

No. 1176

Supreme Court of Vermont

February 7, 1950

January 1950.

Judgment affirmed.

Barber & Barber for the defendant.

Edwards & Bigelow for the plaintiff.

Present SHERBURNE, C. J., JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.

OPINION

SHERBURNE

This is an action for the conversion of a mortgaged Kaiser automobile. From a verdict and judgment for the plaintiff the defendant has excepted.

On September 14 or 15, 1948, John Cowing of Bellows Falls, a dealer in Kaiser-Frazer automobiles, obtained by telephone from the Rutland Motor Sales Corporation, Vermont distributor of such automobiles, the motor and serial numbers of the car in question. In the morning of September 16, 1948, Cowing sold the car to the defendant for cash and gave him a receipt or bill of sale, upon which were these motor and serial numbers. In the afternoon of that day Cowing gave a chattel mortgage to the plaintiff upon this car, in which these numbers were written to secure a loan of $ 1950.00, and received in return a check for that amount made out to the Rutland Motor Sales Corporation to be used in payment for the car. This mortgage was duly recorded at 9:30 A. M. September 17, 1948. On that day Cowing went to Rutland, and using this check in part payment got the car, and received from the Rutland Motor Sales Corporation a bill of sale for it. Cowing delivered the car to the defendant that afternoon.

The only question raised here is whether Cowing owned the car at the time he mortgaged it, and the court tried the case and submitted it to the jury upon the theory that the plaintiff must prove that Cowing then owned it in order to recover. All evidence of such ownership came from Cowing. He was in an awkward spot and his testimony was conflicting. Viewing his testimony most favorably to the plaintiff it reasonably tends to show that he was a straight factory dealer in Kaiser cars under appointment from the Rutland Motor Sales Corporation, and had done considerable business with that corporation, that on September 14 or 15, 1948, when he got the motor and serial numbers of this car over the telephone from such corporation, he was told by some one there, whose name he could not recall since he had dealt in over 500 automobiles that year, that they would sell this car to him, and that he replied that he would buy it. In 1948 automobiles were hard to get and Cowing had to take anything and everything that he could get to take care of the demand, "anything that had four wheels and a steering wheel" that he could sell. He further testified that he intended to purchase this car and supposed that he had purchased it by telephone. Although the general manager of the Rutland Motor Sales Corporation testified that his records showed that the car was sold to Cowing on September 17, 1948, he also testified that it wasn't the regular practice of his business to supply dealers with motor and serial numbers prior to date of delivery but that it had been done, and that numbers on one car had been furnished to Cowing, but he didn't know if it happened to be this one or not.

Defendant moved for a directed verdict at the close of all the evidence, to set aside the verdict, and for judgment notwithstanding the verdict. These motions were denied subject to exception. The grounds of all were alike, that there was no evidence of any possession or possessory rights in the car or of any legal title in the plaintiff, or that the plaintiff was the owner of and possessed the car on September 16, 1948; and that there was no substantial evidence to show other than that the car was sold to Cowing on September 17, 1948, and that by the undisputed testimony of the witnesses title was not transferred to Cowing until that date, wherefore the plaintiff could take no title or right of possession by the mortgage of September 16, 1948.

In passing upon these motions the court and counsel referred to V. S. 47, § § 7871 and 7872. These sections, so far as here material, read as follows:

"7871. I. Where there is a contract to sell specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.

II. For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties, usages of trade and the circumstances of the...