Williams v. Stringfield

• Decision Date: 01 December 1924
• Docket Number: 10629.
• Citation: 76 Colo. 343,231 P. 658
• Parties: WILLIAMS v. STRINGFIELD et al.
• Court: Colorado Supreme Court

231 P. 658

76 Colo. 343

WILLIAMS v. STRINGFIELD et al.

No. 10629.

Supreme Court of Colorado

December 1, 1924

Rehearing Denied Jan. 5, 1925.

Department 2.

Error to District Court, City and County of Denver; John T Shumate, Judge.

Action by Ruth Williams against J. L. Stringfield and others. Judgment for defendants, and plaintiff brings error.

Reversed and new trial granted.

Edwin N. Burdick and Clarence O. Moore, both of Denver, for plaintiff in error.

John L Schweigert, of Denver, for defendants in error Stringfield and Cobbey.

J. A Marsh and J. J. Liebermann, both of Denver, for defendant in error Downer.

Tolles & Cobbey, of Denver, of counsel, for all defendants in error.

DENISON J.

The judgment below was upon a verdict directed for defendants in a suit by Ruth Williams against Stringfield and others for the taking and conversion of an automobile. She brings error. The defendants took the automobile upon execution against one Le Master, to whom they say it belonged. The plaintiff contends that the machine never belonged to Le Master; that, though it was purchased and licensed in his name, that was all done by him as her agent, with her money, and that his subsequent assignment to her was in pursuance of their previous understanding.

The complaint alleges a wrongful taking of the automobile on July 29, 1920. It is well drawn and exactly equivalent to a declaration de bonis asportatis at common law. It is the wrongful taking which is the gist of that action and constitutes the violation of the right of the plaintiff. It follows that the question was whether on July 29th, when the car was taken, plaintiff had a right of possession. Nachtrieb v. Stoner, 1 Colo. 423; 1 Chit. Pl. 171. Our former opinion was to the effect that, because at the time of the suit brought the right of possession was in a mortgagee, the suit could not be maintained; but we overlooked the fact that the action was in substance trespass de bonis, that is, an action for the wrongful taking of the property of the plaintiff in which the essential fact is right of possession in the plaintiff at the time of the taking, not at the time of the bringing of the suit or of any transaction subsequent to the taking. At that time plaintiff had the right of possession as against the mortgagee. The plaintiff's demand for possession of the machine was unnecessary because of the original wrongful taking, and therefore the fact that, at the time of the demand, the mortgagee had the right of possession and the plaintiff not is inconclusive. This disposes of the claim of defendants in error that plaintiff's only remedy was a bill to redeem. What the measure of damages will be under these circumstances is a question not at present before us.

The defendants claim that the evidence is insufficient to show that the plaintiff had the right of possession, and, in support of that, they say that there had been no delivery of possession to the plaintiff sufficient to satisfy the statute of frauds, because her possession was not exclusive, since, they say, Le Master was in possession with her, and because, they say, the change of possession to her was not open, visible, notorious, and unequivocal, as the decisions of the court require it to be. There was sufficient evidence, we think, of the change of possession, but we will not go into it in detail, because this case is...