Vincent Murphy Chevrolet Co. v. Auto Auction, Inc.

• Decision Date: 10 March 1967
• Docket Number: No. 4135,4135
• Citation: 413 S.W.2d 474
• Court: Texas Court of Appeals
• Parties: VINCENT MURPHY CHEVROLET COMPANY, Inc., Appellant, v. AUTO AUCTION, INC., Appellee. . Eastland

Page 474

413 S.W.2d 474

VINCENT MURPHY CHEVROLET COMPANY, Inc., Appellant, v. AUTO AUCTION, INC., Appellee.

No. 4135.

Court of Civil Appeals of Texas.

Eastland.

March 10, 1967.

Rehearing Denied April 7, 1967.

Thornton, Thornton & Fisher, R. E. Thornton, Olney, for appellant.

Key, Carr & Clark, Donald M. Hunt, Lubbock, for appellee.

COLLINGS, Justice.

Auto Auction, Inc., a California corporation, brought suit against Vincent Murphy Chevrolet Company, Inc. of Archer City, Texas, and Norman Cadle for breach of an implied warranty of title to an automobile sold to plaintiff and on the agreement of the Chevrolet company to indemnify subsequent purchasers. Cadle did not answer and an interlocutory default judgment was rendered against him. Vencent Murphy Chevrolet Company, Inc. filed a general denial. After the filing of depositions and affidavits by both parties, plaintiff moved for a summary judgment against the Chevrolet company for its breach of warranty and prayed that the interlocutory judgment against Cadle be made final. The Chevrolet company filed an affidavit in opposition to the motion for summary judgment and prayed that in the event judgment should be rendered against it that it should have a like judgment against Cadle. Cadle made no answer to the cross claim and upon a hearing of the motion for summary judgment, judgment was rendered jointly and severally against the Chevrolet company and Cadle. The Chevrolet company was granted a like judgment over against Cadle. Vincent Murphy Chevrolet Company has appealed.

The record shows that appellee Auto Auction, Inc. does business under the names of Los Angeles Auto Auction and Los Angeles Dealer Auto Auction. It acts as a clearing house for new and used car dealers, handles automobiles on a commission basis, taking title from the seller and passing title to the buyer. Harold C. Henry, one of the affiants to appellee's motion for summary judgment, is appellee's president and Tom Ellis, another affiant, is appellee's general manager. The president of appellant, Vincent Murphy Chevrolet Company, Inc., is Vincent Murphy and its vice president is Dale Murphy. It is undisputed that on or about November 13, 1963, Norman Cadle contacted appellant's president, Vincent Murphy, and requested appellant to finance the purchase of five Cadillac automobile which Cadle desired to purchase from E. R. Broom. It is shown that Cadle and appellant agreed that appellant would finance the purchase of such automobiles, including the one here in question and would hold open titles thereto until they were sold by Cadle; that appellant would receive the proceeds of the sales and apply same to the amount owed to it by Cadle; that when the full amount of Cadle's debt, including financing costs, was repaid any additional amounts received would belong to Cadle. It is undisputed that Broom delivered titles to the automobiles to appellant at its office in Archer City and was paid $15,000.00 therefor by appellant.

Thereafter Cadle came to appellant's office and signed a chattel mortgage note in the amount of $15,000.00 covering the purchase price of the five automobiles. Under the agreement between the parties appellant was to hold the title to such automobiles as agent for Cadle and deliver them upon Cadle's order. Appellant asserts that Cadle was never authorized to represent it or to represent to others that he was working with or for it. Appellee admits that it can not establish that appellant was not Cadle's agent but asserts that it had no knowledge of the existence of such agency, and that Cadle's representations, which it believed, were to the contrary.

The record shows that appellee's first connection with the matter involved was on November 16, 1963, when Norman Cadle delivered a 1963 Cadillac 6 passenger coupe DeVille with 1963 license plates for the State of Nebraska to appellee's general manager, Tom Ellis. Cadle represented to Ellis that he was working for appellant, delivering and selling automobiles and that the Cadillac in question was owned by appellant, and that he was authorized by appellant to sell such automobile. At that time Ellis agreed to purchase the Cadillac for appellee and neither he nor appellee had any knowledge concerning the arrangement between appellant and Cadle except what Cadle told him. Ellis believed that appellee was purchasing the automobile from appellant and contracted for appellee on that basis. Ellis thereupon agreed with Cadle, on appellee's behalf, to purchase the Cadillac for $4123.09 and the automobile was left with appellee for resale. Three days later appellee, believing that it had title to the automobile, sold it to Shattuck Avenue Motors in Berkeley, California.

Appellant was informed by Cadle that he had sold the Cadillac in question to appellee. Under instructions from Cadle appellant thereupon endorsed the title to appellee and executed certain other title papers required by the State of California. The title documents did not arrive in California until a few days later. Included in such title documents, which were dated November 23, 1963, was a bill of sale executed solely by appellant Vincent Murphy Chevrolet Company by the signature under oath of Dale Murphy. The bill of sale recited a consideration of $10.00. It purported to sell to appellee appellant's right, title and interest in and to the automobile in question. It warranted that appellant was the owner of said vehicle, warranted title thereto and that it was free from any...