Gomery-Schwartz Motor Car Co. v. Tucker ( 1924 )

Argued October 22, 1924. This is an action of replevin instituted by the plaintiff, the Gomery-Schwartz Motor Car Company, Inc., to recover possession of an automobile alleged to have been delivered to Thomas A. Tucker on January 2, 1923, under a bailment lease bearing the same date. There was $1,000 paid on account, a Dodge car taken in exchange and a rental of $402 reserved in said lease and a judgment note given for said amount. The note became due and the defendant refusing to pay, this action was brought to recover possession of the machine. The American Brewing Company intervened. The defendants' story is that through Tucker, as president, the American Brewing Company bought the car; that it was paid for in part by a check of $1,000 of the American Brewing Company; that an ordinary promissory note for $400 was given by the American Brewing Company and a Dodge car was turned over to the plaintiff; that it was a week or ten days later when an agent of the plaintiff called on Tucker and said that it was customary for them when a note was given to have a lease signed and Tucker states he signed, in his own proper name, the lease and a judgment note as a mere matter of form. These two counter narratives would seem to require submission to the jury. If it be true that the American Brewing Company bought the car and gave a promissory note and a Dodge car in exchange and received possession of the car, the transaction was closed and title passed to the American Brewing Company. If subsequently Tucker without authority signed a lease, that act would not reinvest title in the original vendor without a redelivery of the machine to them. This question, upon which the case hinged, was properly submitted to the jury. The only assignment of error is to the refusal of the court to enter judgment in favor of the plaintiff n.o.v. We think the case was one for the jury and the verdict settles the matter.

The assignment of error is overruled and the judgment is affirmed.