Kimball v. Donohue

Tolman, J. — Respondent, in his representative capacity, brought this action in replevin to recover possession of a Chevrolet .automobile truck, then in the possession of defendant. The action was tried to the court, and resulted in a judgment as prayed for in respondent’s complaint, from which judgment the defendant has appealed. The statement of facts is in narrative form, and very unsatisfactory, but it appears with little, if any, contradiction that appellant purchased the automobile in question from a recognized dealer, negotiated the purchase individually, and turned in as a first payment a used Ford car owned by him, at a valuation of [506] $300. The remainder of the purchase price, $667.90, was, as shown by the written memorandum of conditional sale, payable in monthly installments. This conditional sale agreement was signed by Clara Hull as vendee, and there is some evidence, by an apparently disinterested witness, to the effect that he introduced appellant to the dealer, was present during the negotiations which resulted in the sale, drove the purchased car away at the request of appellant, and went to the home of Clara Hull and there procured her signature to the contract. No satisfactory explanation is made as to the reason why appellant himself failed to sign the contract as vendee, or why Clara Hull should sign the contract unless she had some interest in the car purchased. The automobile remained at all times in the possession of appellant, and there is nothing else shown indicating that Clara Hull had or claimed an interest in the car, except that, until the contract was paid out, the state license was carried in her name, a receipt for one of the monthly payments was found among her papers after her death, and there is testimony that at one time, not in the presence of appellant, she pointed out the car as belonging to her. Upon the other hand, .it appears that the wife of appellant made most, if not all of the deferred payments at the office of the vendor; that, at one time when payments were in arrears, a representative of the vendor called on Clara Hull for the purpose of collecting or repossessing the car, and his testimony is that she then claimed that she had no interest in the car whatever. It is shown that there were friendly relations between Clara Hull and the appellant, and there is some testimony, though of a rather vague nature, that money was seen to pass between them at different times, [507] though none to the effect that Clara Hull actually advanced money through appellant to make any payment on the car. After the final payment was made, in the beginning of the year 1922, appellant procured a state license for the car in his own name. The trial judge was of the opinion that the so-called paper title must prevail, but as against the admitted fact of the initial payment having been made by appellant, the possession being in him at all times, and the weight of the evidence leaning toward the conclusion that he paid all of the purchase price, we cannot so hold. "Whether, because of the death of Miss Hull, the mouths of witnesses' have been closed, or there be other reasons why the real facts surrounding the táking of the contract in her name are not disclosed, is immaterial. We must pass on the record as it is presented here, and as we view the facts thus disclosed, the bare signing of the contract for undisclosed reasons cannot prevail over the negotiation of purchase, the payment of the purchase price largely, if not wholly, and the uninterrupted possession which appellant at all times maintained. These things at least indicate his. right to possession, if not his absolute title, and if he had the right of possession, that alone is sufficient to defeat an action in replevin. After the trial court had indicated his intention to find for respondent, appellant was permitted to reopen his case and give testimony under the allegations of his affirmative answer as to the reasonable value of the use of the car during the time it was withheld from him by virtue of the replevin writ, but as respondent had been by the court assured of a judgment in his favor, he did not attempt to meet this, testimony. In view of this situation, and because such damages are more properly the subject of an independent action, the subject of damages will not now be considered. [508] The judgment appealed from is reversed with directions to dismiss the action. Main, C. J., Bridges, and Pemberton, JJ., concur.