Kaiser v. Zundel

95 P.2d 499, 98 Utah 15, 1939 Utah LEXIS 3

• Court: Utah Supreme Court
• Decided: November 7, 1939
• Docket: No. 6086.
• Status: Published

Opinions

MOFFAT, Chief Justice.

An action in conversion to recover the value of a certain 1937 Chevrolet one-ton truck, claimed to belong to the plaintiff Georgia M. Kaiser, was brought against the defendant, Sheriff of Box Elder County. The truck was seized by the sheriff under an execution in which the plaintiff’s husband was the judgment debtor.

The complaint alleges that on or about July 22, 1937, .plaintiff purchased the truck in question from the Central Chevrolet Company, of Brigham City, Utah; that she was in possession of and used the same until January 25, 1938, when the sheriff unlawfully levied upon and forcibly took possession of the truck, that she demanded the return thereof, made affidavit of her ownership, and that the sheriff refused and still refuses to return possession of said truck to plaintiff.

In addition to certain admissions and denials not pertinent to the issues before this court, the sheriff by answer and further answer admitted his official capacity, alleged the issuance and service by levy of an execution issued out of the city court of Brigham City, against Rudolph Kaiser and R. M. Kaiser doing business as the Bargain Store. The defendant, sheriff, upon “his information and belief avers that the goods levied upon” to wit: The 1937 one-ton Chevrolet truck as described by plaintiff, “were at the time of said levy the property of Rudolph Kaiser and — R. M. Kaiser.”

Plaintiff’s reply admitted the levy and sale and claim of ownership and, separately replying alleged:

“1. That on the 31st day of January, 1933, in the City Court of Brigham City, Box Elder County, Utah, the Abernathy Furniture Company, a corporation, obtained a judgment against R. M. Kaiser, a sole trader doing business as the Bargain Store, in the sum of $58.65 together with interest and costs, and an execution was issued upon the same and placed in the hands of the Sheriff of Box Elder County for service, and the said Sheriff was directed to satisfy said judgment out of the personal property of said Bargain Store. That after due notice was given, the said Sheriff, on the 21st day of March, 1933, at 2 o’clock P. M. at the front door of the Court House of Brigham City, Utah, sold all the assets and personal property of said Bargain Store, and one N. R. Peterson became the purchaser of said personal property.

“2. That Strevell-Paterson Hardware Company are the plaintiffs in the suit against the said Rudolph Kaiser and R. M. Kaiser, co-partners doing business under the firm name and style of the Bargain Store, being the City Court file No. 2423, and is the cause of action in which the execution as hereinbefore described was issued upon, and that said cause of action was commenced on or about the 2nd day of February, 1933, and said plaintiffs were represented in said court by the same attorney as the Abernathy Furniture Company, a corporation, and did have due notice thereby of the said sale of all of the said personal property belonging to the Bargain Store.

“3. That by reason of said action, all of the goods and assets of the Bargain Store were thereby disposed of, and said Bargain Store was thereby closed out.

“4. That said N. R. Peterson, after purchasing the goods at the Sheriff’s sale, commenced business in the name of N. R. Peterson Company and so continued in business and did, on the 1st day of July, 1937 sell and convey to the plaintiff herein his good will, stock of merchandise, truck, and other personal property, who since said date has conducted said business as a sole trader under the name and style of the Kaiser Company, she being the sole owner of the same, and said truck so taken and sold by the said sheriff was her sole and individual property.”

Appellant states, and respondent agrees, that the trial court found as a fact that Georgia M. Kaiser, plaintiff and appellant, was not the owner of the 1937 Chevrolet truck levied upon by the sheriff John H. Zundel, defendant and respondent, on or about January 25, 1938. It is also agreed that the only question before the court is: Does the evidence support the finding?

It is not necessary to make a detailed statement of the findings. The findings follow generally the allegations of the pleadings. There was much time spent in what may be termed a historical rendition of transactions, extending back to 1933 as to business relations, and personal affairs back to an earlier date.

Much of the briefs of counsel on both sides is devoted to immaterial matters as we view the issue. We find no place where the Bulk Sales Act, Rev. St. 1933, 32-2-1 et seq., has anything to do with the issues or whether N. R. Peterson bought the goods of the Bargain Store, or whether affidavits relating to creditors were made or notices served. There are no allegations of fraud or deceit made.

Peterson, as owner, had operated the store for about four years, and the Vó-ton truck since 1936, when he sold the goods and truck of the N. R. Peterson Company to Georgia M. Kaiser. Part of the purchase made by her was a one-half ton truck. As disclosed by an approved order constituting the record of the sale of a one-ton truck to “The Kaiser Co. Georgia M. Kaiser Prop.” the one-half ton truck bought by Georgia M. Kaiser from N. R. Peterson Company was used as part payment of the one-ton Chevrolet truck here in question, and the balance was paid in cash. This record of sale from the Central Chevrolet Company discloses adequate consideration and title passed to Georgia M. Kaiser, as proprietor of the Kaiser Company.

This truck was registered by the State Tax Commission showing a “sale by licensed dealer,” upon an affidavit in the following words and form:

“Affidavit of Owner, State of Utah, County of Box Elder. I the undersigned being first duly sworn depose and say that I am the owner of the vehicle described on the reverse side of this application and that my address given and all other information contained hereon is accurate and true. Kaiser Co., K. M. Kaiser Mgr. Signature of Owner.”

Corporations, partnerships and sole traders using business names register motor vehicles by the affidavit and applications of officers, representatives or agents. The affidavit made by R. M. Kaiser, signing as manager, creates only a question as to the capacity in which he was acting in signing the document. The signed printed form of affidavit referred to the undersigned as “owner.” This did not make him such owner. Although the signing of the affidavit for application for registration of the truck is subject to some implications, these implications could not divest Georgia M. Kaiser of the title which, without question, she received from the Central Chevrolet Company.

There are no allegations of fraud, no allegations that R. M. Kaiser was using the names of N. R. Peterson Company, or Kaiser Company, as his own business name. There is no proof that he was the owner of the truck. It was error for the court to find and decide that Georgia M. Kaiser was not such owner.

Judgment is vacated and set aside. The cause is remanded for a new trial. Appellant to recover costs.

LARSON, McDONOUGH, and PRATT, JJ., concur.