Richton Overland Co. v. McCormick Motor Car Co.

*619 Smith, C. J., delivered the opinion of the court. The appellee sued the appellant in the court of a justice of the peace to recover the principal and interest on two notes executed to it by Gordon and attorney’s fees provided in the notes to cover the cost of collection. Both notes recite that they were given as part of the purchase price of an automobile, and that title to the automobile was retained by the appellee until the notes should be paid, and provide that, if “not paid at maturity, then, at the option of the holder of the note, all of said series of notes shall become due and payable at once, and the said McCormick Motor Car Company, Inc., or the holder of this note, shall have the right to repossess said automobile,” etc. *620 In due course, the case reached the court below, and, hy agreement, was there tried without a jury, on an agreed statement of facts, from which it appears' that one of the notes executed by ’Gordon to the appellee was due on December 10, 1925, and the other on February 6, 1926. On December 15, 1925', the appellant sold an automobile to Gordon, and received from him the automobile purchased by him from the appellee in part payment thereof. The appellant was without notice of the appel-lee’s interest in the automobile. Gordon advised it that there were no liens on the automobile, and that it had been fully paid for. Thereafter, the date of which does not appear, but before the appellant had any knowledge of the appellee’s interest in the automobile, the appellant sold the automobile to Matthews. Neither Matthews nor the automobile can now be located. The notes due by Gordon to the appellee have not been paid, and both were past due when this suit was begun. They were not recorded in the chancery clerk’s office, nor was any other instrument recorded therein setting forth the contract by which the appellee sold the automobile to Gordon. The value of the automobile, when sold by the appellant to Matthews, was one hundred twenty-six dollars. Judgment was rendered for the appellee, from which the appellant has brought the case to this court. This court has repeatedly held that a sale of a chattel on condition that the property therein shall remain in the seller until the price is paid is valid against a third person claiming under the buyer, although the contract of sale was not recorded, and such third person was without notice thereof. Counsel for the appellant admit that, if the automobile sold by the appellee to Gordon was now in the appellant’s possession, the appellee could maintain replevin therefor, but they say that the appellant is not liable to account to the appellee for the value of its interest in the automobile, for the reason that it parted with the pos *621 session thereof before receiving notice of the appellee’s claim thereto. This is the only question raised by counsel for the appellant, and this opinion will be limited' thereto. Gordon had an interest in the automobile, which he could transfer to another, but he was without power to sell the entire property therein; consequently the purchase of it from him, by the appellant, invested it with no such power, and, when it disposed of the automobile, it was guilty of a wrongful conversion thereof, notwithstanding its ignorance of the appellee’s title thereto (38 Cye. 2024) for which the appellee is entitled to recover. Affirmed.