Rowlands v. Electrical Construction Co.

Jones, J. It is claimed by the appellant that title to the automobile passed to Feldman on January 3d by virtue of the memorandum signed by Mrs. Cheney and payment of $375; that the bill of sale to respondent on the next day passed no title to him because Mrs. Cheney had no title to convey; that there was no contract of bailment because he had no title on that day; and that appellant delivered the car to the true owner in good faith, and that the memorandum executed on January 3d and the canceled check and the failure of respondent to show to appellant his bill of sale afforded sufficient evidence to warrant the delivery. The memorandum executed on January 3d is not a bill of sale. At that time Mrs. Cheney had no title to the car and the document was only an executory contract to sell. The last clause, “if the machine is not transferred to said Feld-man the money must be refunded,” clearly shows that there [170] was not even an unconditional contract to sell the car. The oral testimony shows that this clause was regarded as important by Mrs. Chene)'-, and we construe it as a reservation on her part of the right to pay back the money and keep the car. In view of the testimony that she had been misled by Feldman as to the value of the car, and had been told that it was a Ford when in fact it was a Mitchell car, we cannot say that she was not justified in exercising the option she reserved. After acquiring title on the following day, her bill of sale to the plaintiff rescinded the agreement with Feldman so far. as related to the car, and, as the trial court found, passed title to the respondent. Shores L. Co. v. Claney, 102 Wis. 235, 78 N. W. 451. Counsel for appellant criticise the conduct of respondent and argue that since he drafted the memorandum and accepted the money from Feldman, being at the same time agent of Mrs. Cheney, he is estopped from claiming title to the car. Feldman is not a party to the suit, and it is difficult to see that any of these facts are available as an estoppel on behalf of appellant. Moreover, there is evidence that respondent had some reason to believe that Feldman had attempted to take advantage of Mrs. Cheney, for whom respondent was acting as agent. The testimony is quite susceptible of the construction that respondent in the whole transaction was seeking to protect his principal. The trial judge probably so believed, and in the decision found that plaintiff was not chargeable with fraudulent conduct and was not estopped. The appellant may have acted in good faith in delivering the car. to Feldman, but it certainly acted very rashly in so doing. There is a clear preponderance of proof that it knew that respondent claimed to be the owner of the car, and, as the trial court found, that it agreed as bailee to deliver it to respondent. It was not necessary in making this contract of bailment that respondent should produce and show to [171] appellant the evidence of his title, and no such evidence was called for. Since we hold that respondent was the owner of the car when the contract of bailment was made, it follows that appellant disregarded its contract in making delivery to Feldman, and it becomes unnecessary to discuss the question when delivery may be made by a bailee to a third person having paramount title. By the Court. — Judgment affirmed.