Opinion
No. 4124.
Decided February 3, 1953.
In a replevin action to recover an automobile purchased by the defendant from a dealer who obtained it from the plaintiff the evidence warranted the findings and rulings that the plaintiff merely entrusted the dealer with possession of the car to "try out" and to show to prospective customers, with no intent to pass title. In such case, where no indicia of title were placed in that dealer's possession by the plaintiff the latter is not estopped to deny the dealer's authority to sell the car.
REPLEVIN, for a 1947 Pontiac automobile purchased by the defendant from a dealer who obtained the automobile from the plaintiff. Trial by the Court (Wescott, J.) who made findings and rulings and returned a verdict for the plaintiff.
The defendant took certain exceptions in the course of the trial, and excepted to the denial of his motion to set aside the findings and the verdict because against the law and the evidence, and the weight of the evidence, and because the Court fell into a plain mistake. These exceptions were reserved and transferred by the Presiding Justice.
The findings and rulings of the Trial Court establish that in May, 1949, the plaintiff, a dealer in new and used automobiles, doing business in Concord, entrusted the Pontiac in question to a used car dealer, Elmo R. Kumph, to "try out" and to show to prospective customers. A week later Kumph returned with the car, and the plaintiff supplied some seat covers. On June 2, Kumph returned in another car and gave the plaintiff a check for $1,200 for the Pontiac, representing that the check would not be good until the following Monday, June 6. The parties did not intend that title should pass until the car was paid for, and although Kumph requested a bill of sale, the plaintiff refused to give one until the check should be paid. It was never paid, and the car was replevied on June 6, 1949.
Prior to June 2, without the plaintiff's knowledge, the defendant, a dealer in Manchester, had purchased the automobile from Kumph for $1,100, on the latter's representation that he had previously purchased it from the plaintiff for $1,200 and that it was paid for. According to the defendant, this transaction occurred on May 5, 1949, and the car was not at any time thereafter in Kumph's possession.
The Court found and ruled that Kumph had no title on May 5, and that he "did not have the authority nor the consent of the plaintiff to actually sell the automobile before it was paid for, is the plaintiff by its conduct precluded from denying Kumph's authority to sell the automobile." Other facts are stated in the opinion.
Sulloway, Piper, Jones, Hollis Godfrey and Irving H. Soden (Mr. Soden orally), for the plaintiff.
Joseph J. Betley (by brief and orally), for the defendant.
The defendant places little if any reliance upon the claim that he acquired title to the automobile by his alleged purchase, but urges vigorously that the plaintiff's conduct as disclosed by the evidence estops him, as a matter of law, to deny Kumph's authority to sell the car. R. L., c. 200, s. 23 I.
Whether title passed to Kumph depended upon the intention of the parties to the transaction. R. L., c. 200, s. 18; Employers Assurance Company v. Sweatt, 95 N.H. 31, 33. The Trial Court's finding and ruling that title did not pass is supported by the evidence and final in this court.
The finding and ruling that the plaintiff is not precluded from denying Kumph's authority to sell the automobile is likewise free from error. It is supported by other findings to which the defendant has preserved only a general exception (see Sandown v. Kelley, 97 N.H. 418, 419): "Mr. Grappone did not clothe Mr. Kumph with either express or apparent authority to sell the car. Mr. Kumph did not take the car on consignment. When the car left the premises of Grappone, Inc. the dealer's plates of Grappone, Inc. were affixed thereto. If Mr. Kumph had possession of the car on May 5, 1949, he had no other indicia of title on that date. In purchasing the car Mr. Harko relied on Mr. Kumph's representations that he was the owner, and did not believe that Mr. Kumph was acting as agent for Grappone, Inc. Mr. Grappone never made any representations, either oral or written, whereby Mr. Harko was led to believe that Mr. Kumph had authority to sell the car."
No errors of law are apparent upon the face of the findings and rulings. They establish that the plaintiff did no more than entrust Kumph with possession of the car. This was insufficient to give rise to an estoppel, even though Kumph was a dealer. 2 Williston, Sales (Rev. ed.) ss. 313-315; Royle v. Worcester Buick Co., 243 Mass. 143; Nelson v. Wolf, 4 N.J. 76. No indicia of title were placed in Kumph's hands, and the plaintiff's registration plates remained upon the vehicle, so far as appears. Thus the case is to be distinguished from cases where the owner furnished evidence of title or authority, in addition to possession, to the person who made the sale. Cf. Terry Sq. Motors, Inc. v. Haber, 137 Conn. 377; note, 18 A.L.R. (2d) 813, 833; Williston, supra, s. 316.
It may also be noted that the Court found and ruled that the defendant "was not an innocent purchaser for value without notice." Thus even if Kumph could be found to have acquired a voidable title before the sale to the defendant, the latter would not benefit from such a finding. See R. L., c. 200, s. 24.
Judgment for the plaintiff.
All concurred.