Wittschen v. Zimmer

4 Pelt. 541, 1921 La. App. LEXIS 57

• Court: Louisiana Court of Appeal
• Decided: May 16, 1921
• Docket: NO. 8030
• Status: Published

Opinion

ORI HI OH*

By his Honor John St. Paul.

This is a controversy ovar the ownership of an automobile, and involves only a question of fact.

Defendant had a second hand automobile for which ha had paid $315; and he ran it into a canal, where it lay for one week. During that time it was stripped of four ■ new tires; by a person who was honest enough to restore them to defendant, who afterwards sold them.

Plaintiff, who is an automobile mechanio, was sent for to get it out, and did so; taking it to his place of business, where it stood on blocks for some days, practioally a=woak.

According to plaintiff's testimony, and the testimony of one other witness, plaintiff offerred to purchase it as it stood for $50, which defendant accepted; and $25 was then and there paid on account, the balance to be paid when demanded. Another witness came up as the $25 was paid; and though he did not hear the bargain made, he was informed of it a moment afterwards. And plaintiff then repaired and renovated it, at a cost of $200 or more in material and labor.

Defendant testified that he left the automobile with plaintiff to be sold as it stood for $000 if possible, but not tíéé for less than $200 in any case; that ha forbade any repairs to be made thereon at his (defendant's) expense; and permitted suoh repairs as were made, only on plaintiffs assurance that he would lose nothing by it.

May 16th, 192L.

The trial judge believed the plaintiff and his witnesses. He did not believe the defendant. Moreover, the fact that defendant sold the new tires seperately instead of having them put back on the automobile, and did not even send back the four old tires which he still had at home, indioate presuasively that in his opinion the automobile had reached that state where it was simply junk and not saleable except as such; so that it is simply incredible that he expected to get $300 or even $200 for it.

Thus the record presents a clear preponderance of evidence in favor of plaintiff, corroborated by the circumstances, and by the finding of the trial judge. And accordingly,

The judgment appealed from is therefore affirmed.

Hew Orleans ña,