Whidden v. Davidson

Holden, J., delivered the opinion of the court. This is a replevin suit instuited by Gr. W. Davidson, appellee, to recover possession one Ford car from Mrs. Alice Whidden, appellant. A reversal is sought here upon the ground that the lower court erred in refusing to allow appellant to show that the appellee, Davidson, had waived his right to the possession of the car, and in granting a peremptory instruction for the appellee. The record in the case discloses that appellee, Davidson, contracted to sell the car to one J. P. Shows for one hundred and seventy-five dollars .cash and the balance evidenced by note, the seller retaining title to the car to secure payment of the balance of the purchase money. Some months afterwards when the balance of the purchase money had been paid by Shows except one hundred and twenty-two dollars one Albert Davis purchased the ear from Shows, and later sold it to the appellant, Mrs. Alice Whidden. Five months after the appellant bought the car from Davis* this replevin suit was entered. At the trial appellant offered to show by credible- testimony that the appellee, Davidson, consented to the sale of the car by Shows to Davis. This testimony was objected to, and the objection was sustained by the court, presumably upon the ground that [777] it was inadmissible because it varied tbe terms of tbe original written contract between appellee, Davidson, and Shows. A peremptory instruction for tbe appellee was granted following tbe exclusion of tbis testimony. Tbe right of possession to tbe car, of course, is tbe question involved. If tbe appellee expressly consented that Shows could sell, and- deliver tbe car to Davis, and Davis acted upon tbis consent, then tbe appellee waived bis right of security against tbe car in tbe bands of Davis or bis vendee, appellant, for the balance of tbe purchase money. Tbe action of appellee, Davidson, in agreeing to tbe resale and stating to Davis that it would be all right for Davis to go ahead and purchase tbe car, authorized the' sale and amounted to a relinquish ment of appellee’s security in the car for tbe balance of the purchase money as against Davis and bis subsequent vendee, the' appellant, Mrs. Whidden. It is not a case where parol testimony is offered to vary tbe terms of .the written contract, but one where proof is offered to show that tbe seller under tbe retention of title contract expressly agreed to waive and forego bis right of security and possession in tbe car. It is equivalent to a subsequent modification of the contract afterwards acted upon by a third party. Tbe court erred in excluding the testimony offered by appellant. The record shows that tbe appellee, Davidson, denies that .be relinquished bis security and consented to tbe sale and delivery of tbe car to Davis. Tbis denial brings about a'conflict in tbe testimony which should have been submitted to tbe jury for their determination. If .the appellee waived bis right of security in tbe car, as tbe appellant offered to prove below, be still has bis claim against Shows, the maker of tbe note, but not against tbe car in tbe bands of a third party who óbtáin-ed and acted upon tbe authority of tbe appellee to purchase and possess' tbe car¡ Reversed and Remanded.