Ellfors v. Glasser

4 La. App. 612, 1926 La. App. LEXIS 234

• Court: Louisiana Court of Appeal
• Decided: June 26, 1926
• Status: Published

Opinions

MOUTON, J.

Defendant bought an Essex touring car from the National Motor Company for which, in part payment, he executed his promissory note for $850.00 in favor of the company. Plaintiff endorsed this note, subsequently paid it, and brings this suit against defendant for its face value with eight per cent interest as therein stipulated. The purchase price of the auto was $1950.00. Defendant claims, in his answer, that plaintiff took illegal possession of the auto and sold it; that he is responsible for the difference between the amount of $850.00 which he paid as endorser of the note, and $1950.00, the purchase price of the auto, that is, for the sum of $1100.00.

Defendant also alleges that plaintiff took illegal possession of property belonging to him consisting of two horses, butcher carts, tools, etc., of the value of $480.00, and that he has converted same to his use against respondent’s Will. The district judge found that defendant had voluntarily abandoned the auto' to plaintiff which had been delivered to him as a credit on the note sued upon. The evidence, we find, fully sustains this conclusion of the trial court. There is therefore no merit in the contention of defendant that plaintiff had illegally taken possession of the auto. It is true the auto had been in use during only one year when it was transferred to plaintiff, but from the condition in which it was at that time, there can be no doubt it had been subjected to rough usage. It appears that before plaintiff got possession of it from defendant that the latter had sold it to Mr. Levee for $350.00. This sale, it is shown, was rescinded as Levee objected to the sale because the ear was encumbered with a chattel mortgage. The evidence shows that the car, at that time, was not worth over $350.00. Plaintiff, after obtaining it from defendant, had repairs made on the car amounting to $386.00, and which he paid. After it had been repaired plaintiff used the car for about eleven months. He then purchased a new car from Wilbert and Company, and got a credit of $400.00 for the old auto, on the purchase price of his new car. The district judge, thought under the circumstances of the case, that defendant should receive a credit of $350.00 on the note sued upon, as that was the price for which he had sold the old car to Mr. Levee. This is all the credit to which defendant was entitled as the evidence shows that $350.00 was the value of the auto at the time of its transfer to plaintiff.

The district judge denied the claim of defendant for $480.00 which, he contended he should recover from plaintiff for the movables he alleged plaintiff had taken from him illegally and against his will.

The proof shows clearly, that defendant, who had been a partner of plaintiff , in the butcher business, had voluntarily left these movables in the possession of plaintiff.

There is some testimony to the effect that these movables had been left by defendant in the possession of plaintiff as security for • a debt plaintiff had paid to the Bank of Lottie. There is some evidence to the contrary it is true, and this question is involved in some doubt. The proof shows that plaintiff and defendant had .been partners in the butcher business which had resulted in an unprofitable venture, the real cause that brought on the disagreement between them.

In this suit defendant is not asking for the restoration of these movables, but restricts his demand to a claim for their value. The court found that partnership rights might be involved in reference to the contentions of the parties as to these movables. The court dismissed the reconyentional demand of defendant for the movables, as in case of non-suit, reserving him the right of claiming their ownership or value in proper proceedings.

. We find no error in this finding and the judgment appealed from is therefore affirmed.