Vela v. Beard
| Decision Date | 06 December 1968 |
| Citation | 442 S.W.2d 644,59 Tenn.App. 544 |
| Parties | Jose Emiro VELA, Appellee, v. Chandler O. BEARD et al., Appellant. |
| Court | Tennessee Court of Appeals |
Alfred T. Adams, Jr., Glasgow, Adams & Taylor, Nashville, Allen J. Strawbridge, Dresden, for appellant.
Manier, Crouch, White & Herod, Nashville, for appellee.
This is an appeal from a decree of the Chancery Court, Part I of Davidson County, in which complainant Jose Emiro Vela was awarded a judgment against defendant Harold L. Winstead and against Jean C. Beard, Administratrix of the Estate of Chandler O. Beard, and Beard Motors, Inc. Only defendant Winstead appealed.
Complainant originally filed suit against Chandler O. Beard, Beard Motors, Inc., Harold A. Wiggins and defendant Harold L. Winstead. A pro confesso was taken against Chandler O. Beard and Beard Motors, Inc. and before the case was tried Chandler O. Beard died and the cause was revived against his Administratrix. No process was served on Harold A. Wiggins and a non-suit was taken as to him.
This suit involves the purchase by complainant of an Oldsmobile automobile from the defendant Chandler O. Beard, doing business as Beard Motors, Inc., and Harold A. Wiggins, a salesman for said automobile concern. No Certificate of Title was ever delivered to the complainant. From statement of defendant's counsel it appears that the car was subsequently repossessed by the defendant, appellant, Harold L. Winstead, who had title to it and who then sold same to another party after the complainant had paid to the defendant Beard the entire purchase price of $3,500.00, plus finance charges, insurance, etc. amounting to a total of $3,840.00.
The proof in the case consisted of the deposition of the complainant and exhibits, together with other documentary evidence, defendant having filed no proof whatever in the case, from a consideration of which the Chancellor held in his Memorandum Opinion filed as a part of the record:
'It is my impression that the answer filed by the defendant Winstead is not only evasive and not responsive to the pleading but is merely an attempt to wash his hands of the entire deal.
I cannot escape the conclusion that the defendant Winstead, from the proof and the pleadings, was cooperating with the defendant, Beard, in their plan to defraud the complainant, which was done.
For the above reasons it is my opinion that the complainant is entitled to a judgment against Mrs. Beard as Administratrix and Harold L. Winstead.'
From the decree implementing the foregoing Opinion the defendant Winstead appealed and has assigned errors.
The original bill charges and it is shown that the complainant was, at the time in question, a foreign student at Vanderbilt University, he being a native of Venezuela. He had been in this country for a comparatively short time, spoke English rather haltingly and knew very little about the laws, customs and practices in this country particularly with respect to the purchase of an automobile.
It is charged that prior to February 18, 1963, complainant went several times to the place of business of the defendant Beard Motors, Inc. and talked with the president, Chandler O. Beard, as well as defendant Harold A. Wiggins a salesman at said Used Car Lot relative to the purchase of an automobile.
Defendants showed him a 1962 Oldsmobile and induced him to purchase same for the sale price of $3,500.00 to which was added sales tax, finance charges, insurance, etc. as above stated.
Complainant relied on the advice and recommendations of these men and, upon agreeing to purchase said automobile, he paid $1,500.00 cash and agreed to pay $195.00 per month to Beard Motors, Inc. until the balance was paid in full. He was assured by these defendants, Beard and Wiggins that he did not need any other documents than the Bill of Sale which they gave him.
After the purchase of the car, complainant, in accordance with his agreement, made the payments when due until on November 19, 1963 when he paid the entire balance of $675.00. It is shown that he drove the car to Washington, D.C., and sent the final payment of $675.00 to Beard on the assurance that his title would be sent to him there but he never received the title as promised.
It further appears that Harold L. Winstead had purchased the car in question sometime prior to that time and that he had financed same through the General Motors Acceptance Corporation which corporation held the title certificate to said car at the time it was sold to complainant.
The bill alleges that the defendant, Harold L. Winstead, knowingly allowed the automobile to be sold to the plaintiff and knowingly permitted the policy of insurance with Motors Insurance Corporation, which was in Winstead's name, to be delivered to complainant and used in a scheme to defraud him. Furthermore, that Chandler O. Beard in order to accomplish this scheme wrote on the face of the policy, 'Policy transferred to Jose Vela.' Said policy is made Exhibit to the bill.
Winstead demurred to the bill but the demurrer was overruled and he then filed his separate answer in which he averred that he had no personal knowledge as to the charges in complainant's bill to the effect that he had purchased a 1962 Oldsmobile on February 18, 1963 from the defendant, Beard Motors, Inc. The Answer avers that the automobile mentioned in the bill was the sole property of the defendant by virtue of his purchase of same in 1961 and that defendants Beard Motors, Inc. and Harold A. Wiggins were without authority to sell the same to the complainant or to any person and were without authority to execute and deliver a bill of sale for the automobile. It is further averred that the automobile was continually titled in the name of the defendant since the date of its purchase in 1961 and was subject to the lien of General Motors Acceptance Corporation to secure a loan made by it to the defendant at the time of its purchase.
The answer denies knowledge of the transactions of complainant with the defendants Beard and Wiggins and avers that defendant had no knowledge or notice, and did not participate in any of the alleged transactions and dealings with the complainant. Many of the allegations are neither admitted nor denied but strict proof is demanded.
As to the allegations of fraud the answer states:
'This defendant denies the allegations of fraud made by complainant against him in Paragraph IV of the original bill. He denies that he knowingly allowed any policy of insurance to be used in any scheme to defraud the complainant. He denies that he, either directly or through the defendant Chandler O. Beard or through any other person, fraudulently deceived the complainant into believing anything in connection with said insurance policy.
And now having fully answered each and all of the allegations of the original bill, this defendant for further answer says that at all times mentioned in the original bill, the automobile described therein was the sole property of this defendant subject to the lien of the General Motors Acceptance Corporation and that the title was so evidenced on the title certificate.'
The answer is signed by attorneys for the defendant and is not sworn to.
In his deposition complainant testified that after he entered Vanderbilt as a student he frequently passed the car lot operated by defendant Chandler O. Beard. He said:
He further testified that it was the following February 17th or 18th, 1963 that he bought the car. In answer to another question he stated:
He detailed his conversations and dealings with the defendants Beard and Wiggins and filed several exhibits to his testimony, one of which was a memorandum showing the list price of the car, together with the down payment of $1,505.00, leaving a balance of $2,100.00. Exhibit II is the invoice or bill of sale to complainant signed 'Beard Motors, Inc. by Harold H. Wiggins', showing a total charge of $3,840.00.
Exhibit V is an insurance policy issued by Motors Insurance Corporation to Harold L. Winstead on a 1962 Olds Air Conditioned Star Fire and on the back of said policy is written in pen and ink, 'Policy transferred to Jose Vela.' Complainant testified that he was about to leave Nashville to go to Washington, D.C. and inquired of the defendant Beard about the title to his automobile and was assured that the Bill of Sale was all he needed. He then inquired about an insurance policy and at this point Beard handed to him the above described policy and when he questioned the fact that it was in Winstead's name Beard assured him that that would be all right.
After he arrived in Washington he had a minor accident with the car and, upon investigation by the police, he showed them this policy. They communicated with the defendant Harold L. Winstead by mail, whereupon, he, Winstead, sent the correspondence to Chandler O. Beard. Subsequently the car was taken out of the possession of complainant and it is asserted by counsel for the defendant that Winstead repossessed it and sold it to another party. However, there is no proof in the record explaining how or why he sent the communication from the Washington police to Beard and why or how he then procured possession of the car and returned it to Tennessee. An affidavit was filed by the defendant in seeking to have a re-hearing and permission to file proof after the case was decided against him, but this is not such a part of the record as to enable us to consider it except to determine whether or not the Chancellor abused his...
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