Wise v. Kennedy

Bkaley, J. The plaintiff sues in replevin to recover possession of “ One Red Jordan Touring Automobile #6557,” which she purchased in June, 1920, from one Charles D. Herlihy. The material facts do not seem to have been in dispute. The defendant claimed title under a mortgage. given by Herlihy to him and two other mortgagees bn September 11, 1919, which was duly recorded. It is contended by the plaintiff, that, having bought and received the car without actual notice or knowledge of any facts which should have put her upon inquiry, she is an innocent purchaser for value, unless chargeable" with constructive notice of the defendant’s mortgage. G. L. c. 255, § 1. Eastman v. Foster, 8 Met. 19, 25. Travis v. Bishop, 13 Met. 304. Shapleigh v. Wentworth, 13 Met. 358. Denny v. Lincoln, 13 Met. 200, 202. Bigelow v. Smith, 2 Allen, 264, 265. Veazie v. Somerby, 5 Allen, 280, 289. Ring v. Neale, 114 Mass. 111. Whitney v. Browne, 180 Mass. 597, 599. Berry v. Levitan, 181 Mass. 73. The mortgagor after the mortgage had been given and recorded, retained possession of the car, which is described in the mortgage as “ one new Jordan Touring car, Number 6552.” Cousins v. O’Brien, 188 Mass. 146, 148. The identity of the car having been unquestioned, the trial judge, following Pettis v. Kellogg, 7 Cush. 456, ruled in [85] substance, that the number stated in the mortgage could be disregarded, leaving the words “ One new Jordan Touring car ” as a sufficient description under which title would pass. But in Pettis v. Kellogg, the defendant mortgaged to the plaintiff “ all the stoves I have in Monterey, the same I had of Moses Fargo.” It appeared that the mortgagor had no stoves in Monterey but had a quantity of stoves in the adjoining town of Sandisfield. The court held, that the words “ in Monterey ” could be rejected as a false recital, and that the remainder of the description was sufficient to give full effect to the sale. We are however of opinion that the case at bar should be distinguished. It is common knowledge, and the uncontradicted evidence shows, and the jury would have been warranted in finding, that automobiles of various mechanical designs, made by numerous manufacturers under multiform trade names, are constantly in the market for purchase and sale. And that cars of any one of the makers can be distinguished with reasonable certainty from other automobiles of the same class, only by the number by which each car is designated. Warner v. Fuller, 245 Mass. 520. The seller with whom the plaintiff dealt was an agent for the sale of Jordan cars, and an examination of the record showing a mortgage of a Jordan touring car numbered 6552, would be insufficient to charge the plaintiff with notice that the car mortgaged was the car with the “ serial ” number 6557, which she bought. If the number in the mortgage is eliminated, the remainder of the description is applicable to all Jordan cars of that class, by whomsoever owned. The first request of the plaintiff, that “ If the jury find that the number used in the defendant’s mortgage was not the correct number, the plaintiff can recover,” should have been given. Iowa Auto Supply Co. v. Tapley, 186 Iowa, 1341. First Mortgage Loan Co. v. Durfee, 193 Iowa, 1142. Exceptions sustained.