Warren v. Finn

• Decision Date: 10 April 1913
• Citation: 84 N.J.L. 206,86 A. 530
• Parties: WARREN v. FINN.
• Court: New Jersey Supreme Court

86 A. 530

84 N.J.L. 206

WARREN

v. FINN.

Supreme Court of New Jersey.

April 10, 1913.

(Syllabus by the Court.)

Appeal from District Court of Jersey City.

Action by John Warren, receiver, against J. Frank Finn. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Argued November term, 1912, before TRENCHARD, MINTURN, and PARKER, JJ.

Fisk & Fisk, of Jersey City, for plaintiff.

F. W. Hastings, Jr., of Jersey City, for defendant.

MINTURN, J. The facts in this case have been submitted by counsel in an agreed state of the case, and are as follows: Albert H. Howe had been in possession of an automobile for a year or more prior to November 9, 1911. In July, 1911, he conveyed it to one Lindsey E. Woolley by written bill of sale, which provided that Howe might retain the automobile and use it during Woolley's absence from the city, and should deliver it to Woolley free of Hens on his return. Howe kept possession of the automobile and continued to use it; Woolley being away on a trip. In November, 1911 (Woolley being still away), a judgment was recovered by the Crescent Automobile Company against Howe in the Second district court of Jersey City, execution was issued thereon, a levy was made upon the automobile as the property of Howe, and it was advertised for sale under the execution. Howe wrote to Woolley informing him of the levy, consulted J. Frank Finn, an attorney at law, and was advised by him that a replevin suit should be brought in Woolley's name for the recovery of the automobile; that it would be necessary to give a bond, and that $600 would be required for the purpose of indemnifying a surety company to issue the bond, and to cover the costs and expenses of the suit. Howe, not having the money, went to one H. C. Rowley, explained the circumstances, and obtained from him his check for $600, payable to Howe's order, for the purpose of bringing a replevin suit in Woolley's name as aforesaid. Howe then went to Finn's office and indorsed the check and gave it to him. The next morning Woolley, having returned to the city, arrived at Finn's office; all that had been done was made known to him, and he approved of what had been done and signed the replevin bond. The writ of replevin was thereupon issued, possession of the automobile was taken under it, and at the trial judgment was rendered for the plaintiff. The defendant appealed, and that case is now pending in the Supreme Court. Finn deposited $300 as indemnity with the surety company, and the remaining $300 was still in his hands at the time of the trial of the present suit in the court below. On November 29, 1911, a judgment was recovered against Howe in the Second district court of Jersey City, by one L. A. Opdyke; execution was issued thereon and returned unsatisfied; and on supplementary proceedings John Warren was appointed receiver of the rights, credits, etc., of Howe. Said Warren, as such receiver, brings this suit to obtain from Finn the $300 in his hands. The court...