Lux v. Lockridge

*641 GIVENS, J. In the fall of 1941 plaintiff-appellant, Joe Lux, agreed with Mr. Webb of the Gray Motor Company of Craigmont, dealer, to trade a car, pickup, and three trucks for a new car, pickup, and three new trucks, plaintiff to retain possession of his motor vehicles until deliveries lay the company. The transaction as to the new car and pickup was completed and is not involved herein. During November, 1941, Mr. Webb brought Mr. Lockridge, the defendant-respondent and cross-appellant, out to look at plaintiff’s trucks. (For clarity and convenience we refer to the parties as plaintiff and defendant.) Plaintiff testified that Mr. Webb and the defendant returned a week later to get the Ford truck here in question. Defendant testified one of the dealer’s employees drove the truck to the dealer’s garage the same day. Before the truck was taken to town, better tires were taken off of plaintiff’s .other two trucks and put on this truck and the bed thereon taken off. Several days later defendant took the truck from the company’s garage and signed an order therefor dated November 18, 1941. The provisions of chap. 144, 1941 Sess. Laws, p. 282, 1 relative to obtaining a certificate of title were not complied with. January 1, 1942, the sale and delivery of all new trucks was forbidden by the United States government, and plaintiff, although he made two applications, was un *642 able to obtain a release for the new truck which the dealer had received. Plaintiff requested the defendant to return the truck, claiming it had been delivered to the dealer and defendant upon the condition that if plaintiff was unable to get the new truck this truck would be returned to him. Defendant, disclaiming knowledge thereof, refused to return the truck (for which he had turned over to the dealer another used truck and his note, which the dealer offered unavailingly to return,) and plaintiff filed this suit, asking for return of the truck and $690 for the rental value thereof. Defendant filed an answer and cross-complaint and asked that judgment be entered directing plaintiff to endorse, assign, and transfer the title certificate covering said truck required by the statute, supra. . The trial court found “The plaintiff Lux did not sell the truck to the defendant Lockridge. He sold it to the Gray Motor Company. The defendant Lockridge purchased the truck from the Gray Motor Co. and not from the plaintiff Lux.” Also, “Mr. Lockridge denied any knowledge of the agreement between the Gray Motor Company and Lux in reference to having the trucks back in case he did not get new ones, and the Court finds that Mr. Lockridge was an innocent purchaser of the truck and that he neither knew of nor was he a party to any agreement between the plain-, tiff Lux and the,Gray Motor Co.” Judgment was nevertheless entered ordering defendant to deliver the truck to plaintiff, and refusing plaintiff damages for the use of the truck by defendant, evidently on the theory that non-compliance with chap. 144, supra, renders the purported sale to defendant void. The defendant appeals from that part of the judgment which directs him to surrender and deliver the truck to plaintiff, and the plaintiff has appealed from the court’s refusal to award damages. There was a sharp conflict .in the evidence as to whether defendant knew plaintiff retained the right to regain possession of his truck in the event the company could not deliver a new truck. There is, however, no dispute in the record that the certificate of title remained at all times in plaintiff’s possession and was never transferred by him to the company or defendant and that defendant received no certificate of title from the company or plaintiff. All were equally charged with notice of chap. 144, supra, providing that no person could “acquire any right, title, claim *643 or interest in or to” a motor vehicle until the vendee had issued to him the certificate of title. Without, therefore, determining whether or not a sale without the transfer of the certificate is void, though urged by both parties pro and con to do so, we are impressed with the cogency of the reasoning in Swartz v. White, 80 Utah 150, 13 P. (2d) 643, to the effect that a purchaser not receiving the certificate of title is not a bona fide purchaser for value and therefore as against defendant the contract existing between plaintiff and the company could be shown, defeating his rights to retain the truck. As against plaintiff’s cross-appeal the trial court was justified in holding he was not entitled to rent for the use of the truck by defendant, because he voluntarily surrendered its possession through the company to defendant to be used by defendant pending delivery of a new truck by the company to him without any expression on plaintiff’s part he was to be reimbursed for such use if the deal was not consummated. Certainly, under the offer to put defendant in status quo ante, after the government’s action had frustrated the transaction, the solution arrived at by the trial court and sustained herein was eminently just and fair. The judgment is therefore affirmed. No costs allowed. Holden, C. J., and Dunlap, J., concur. Budge, J., dissents. Footnotes [1] “48-402-b. Except as provided in Sections 48-402-a, 48-402-j, 48-402-k, 48-402-1 and 48-402-n of this act, no person acquiring a motor vehicle from the owner thereof, whether such owner be a dealer ' or otherwise, shall hereafter acquire any right, title, claim or interest in or to said motor vehicle until he shall have issued to him a certificate of title to said motor vehicle, nor shall any waiver or estoppel operate in favor of such person against a person having possession of such certificate of title or an assignment of such certificate of said motor vehicle for a valuable consideration.”