Shyne v. L. R. Mack, Inc.

Van Kirk, J.: The plaintiff contracted in March, 1918, to purchase an automobile truck from the defendant, one condition of the contract being that the truck should remain the property of the defendant until all of the payments had been made. The contract did not provide the specific times for payment, but that the payments should be made without further demand. Notes were given for the balance unpaid at the time of the purchase in the sum of about $3,100. At the time of the transaction complained of, October, 1920, there remained unpaid one $200 note, due November 5, 1920, which note, given by the plaintiff to the defendant and indorsed by it, had been discounted at the First National Bank of Albany. The plaintiff at the time of purchase was given possession of the truck and used it until October, 1920, when he delivered it to Murphy & Ronan of Albany to be painted. It was discovered that the truck needed repairs and plaintiff directed that it be taken to the defendant’s repair shop, where it was received and the repairs completed on October twentieth. The plaintiff paid the repair bill. The plaintiff testified that he, after paying for the repairs, demanded possession of the truck, but Mr. Bigley, agent of the defendant in its shop, told him he could not have the truck, that there was trouble between him and Mr. Mack and “ we are going to hold this truck; * * * y0u can’t have it.” Mr. Mack was the president of the defendant. Mr. Bigley says that he told plaintiff at the time that he would like to have plaintiff leave the truck in the shop until he paid his note; that plaintiff replied, “ All right, the truck isn’t working and I might as well leave it here as to pay storage on it in Troy; ” that there was nothing said about a dispute between Mr. Mack and the plaintiff. Mr. Gebhard, repairman for the defendant, says that he heard Bigley say to the plaintiff [320] at this time, “ Will you leave the truck here? ” and heard plaintiff say, “ I would just as soon leave it here as to pay storage in Troy; I have no work for it.” This dispute is the only dispute in the evidence. The truck was left with the defendant and no other demand has been made of the defendant by plaintiff for the truck. Two days later, on October twenty-second, Mr. Bigley was informed by the First National Bank of Albany that plaintiff was at the bank and had paid the note. Mr. Bigley, on the same day, directed that the truck be returned to Murphy & Ronan and on that day, or the following morning, October twenty-third, it was returned. The plaintiff was evidently consulting his attorney, because, after he had left the truck at defendant’s shop and before Mr. Bigley had received word from the First National Bank that the note had been paid, his attorney telephoned Mr. Ronan and asked if the truck had been returned and Mr. Ronan replied it had not. As soon as Mr. Ronan received the truck from the defendant he telephoned to plaintiff’s attorney that the truck had been returned. The attorney replied that plaintiff had no use for it and in substance did not care what Ronan did with it. On the twenty-seventh day of October this action for conversion of the truck was begun without any further communication with the defendant. We think the verdict is so against the weight of evidence that a new trial should be granted. The testimony of Mr. Bigley and Mr. Gebhard as to the conversation with plaintiff on October twentieth with reference to retaining the truck in the defendant’s shop, is strongly corroborated by other facts in the case. The plaintiff was not using the truck; he had taken it to Murphy & Ronan to be painted; he wanted it returned to Murphy & Ronan after the repairs had been made. It was retained by the defendant but two or three days and nothing indicates that any loss whatever was occasioned to the plaintiff thereby. If the truck was not retained because the $200 note had not been paid, why did the plaintiff go immediately to the bank and pay it more than two weeks before it was due? No interest is saved by such prepayment of the note. Also, if the truck was not retained because of the failure to pay the note, why did Mr. Bigley, immediately on receiving word that the note had been paid, return the truck to the plaintiff at Murphy & Ronan’s, where it was to be painted? The truck had been used two years and a half and at the time needed painting and repairs and it is not unreasonable that the defendant should desire the final payment for the truck to be made. Where one entitled to the possession of property assents to the retention of the property by the owner, he may not recover for conversion thereof. (38 Cyc. 2009.) [321] The truck came into the hands of the defendant lawfully under the direction of the plaintiff and the legal title was then in the defendant. After the plaintiff paid his note on October twenty-second, the defendant returned the truck to Murphy & Honan, to whom plaintiff had directed it to be delivered for painting. This action thereafter, and on October twenty-seventh, was begun without further demand from plaintiff. Upon this record we disapprove of the finding that there was an actionable conversion of the truck. The judgment should be reversed and a new trial granted. All concur, except Hinman, J., dissenting, with an opinion, in which Cochrane, P. J., concurs.