Schwartz v. Fulmer

Smith, J. .Appellee, a resident of Lonoke, in his suit against appellant, a used car dealer in Little Rock, for conversion of appellee’s automobile by appellant, was awarded damages in the sum of $450 by the trial jury. From judgment in accordance with the verdict, appellant prosecutes this appeal. Appellee, being the owner of the automobile involved herein, sold same to Norman Fitch for $550 of which $100 was paid and a note to appellee, by which title to the car was retained in appellee until purchase money was paid, was executed by Fitch for the balance. A short time thereafter Fitch traded the car to appellant. Upon learning of the trade appellee went to Little Rock and found the automobile on appellant’s lot, and according to appellee’s testimony, he was told by appellant that, if lie would bring Ms papers to show owner-sMp, be could get tbe car. On bis return with tbe papers, tbe following day, be was unable to obtain tbe car. It was also shown that when Fitcb traded tbe automobile to appellant tbe registration certificate wbicb Fitcb bad was made out in appellee’s name. Appellant testified that be sold .tbe car tbe same day that be obtained it. Admitting tbat tbe car was on bis lot when appellee and bis employer came to see bim about it, be stated tbat it was there “for a check-over.’’ He stated tbat be sold tbe car before be found out about appellee’s claim, but bad re-possessed it and bad it at tbe time of tbe trial. Tbe lower court denied appellant’s request for a peremptory instruction in bis favor, but gave the following instructions as to appellant’s liability: “If you find tbat plaintiff was the owner of tbe 1937 Chrysler, that he notified defendant of bis title while tbe car was in defendant’s control and demanded it from defendant, and tbat defendant, despite such notice and demand, sold tbe car, such an act on defendant’s part would be a conversion by defendant of plaintiff’s personal property and you will find for plaintiff. ’ ’ “You are instructed that if you find from tbe evidence tbat tbe defendant Phil Schwartz bad parted with his title to and control over tbe automobile involved in this lawsuit prior to any notice given bim by tbe plaintiff of bis claim of ownership then you will find for tbe defendant Phil Schwartz.” Appellant’s contention is tbat tbe facts in tbe case at bar and those in tbe case of Loden v. Paris Auto Co., 174 Ark. 720, 296 S. W. 78, are identical, and tbat our decision in tbat case controls here. In tbe Loden case we denied to a vendor, bolding a.“title-retaining” note for purchase money, recovery for conversion of the automobile sold by bim in bis suit against a dealer who bad bought tbe automobile from tbe vendee, and who had in due course of business re-sold tbe same. But in tbat case, as we stated in our opinion, the dealer bought the car and re-sold it without any knowledge of the original vendor’s claim. In the case at.bar there was substantial evidence to show — and the jury must have found— that the appellant knew of appellee’s title before making disposition of the car. Therefore, appellant’s sale of the car, after he learned that appellee really owned it, was not a transaction made in good faith or in the usual course of business. Such a sale amounted to a conversion of the property, for which appellant became liable to appellee. Estrich, Installment Sales, § 408-414. Carroll v. Wiggins, 30 Ark. 402. The judgment of the lower court is affirmed. The Chief Justice did not participate in consideration or decision of this case.