Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Mack & Green, for Appellant.
Dodge & Barry, for Respondents.
By the Court, Coleman, J.:
This is an appeal from a judgment of the district court of Washoe County, and from an order of said court denying a motion for a new trial.
Plaintiff, appellant in this court, brought an action in replevin to recover possession of a certain motor truck. The truck was shipped by the Pope-Hartford Manufacturing Company of Connecticut to the Consolidated Motorcar Company at San Francisco. The bill of lading, with a draft attached, was sent to the plaintiff, with instructions to deliver the bill of lading to the motorcar company upon payment of the draft. The draft was not paid, but in some manner the consignee got possession of the truck and shipped it in its own name to Reno, Nevada, to be sold. Before a sale was made, and while the truck was in Reno, it was attached in an action brought by respondent C. P. Burns. Thereafter the appellant paid the Pope-Hartford Manufacturing Company the amount due on the bill of lading, taking from it a bill of sale for the truck. Upon respondent's refusal to surrender possession of the truck to appellant upon demand, this action was brought, resulting in the judgment in favor of respondent. The name of the Consolidated Motorcar Company was changed
to Pope-Hartford Company of California after the car in question had been shipped.
It is the contention of appellant that, since the Consolidated Motorcar Company did not pay the draft drawn upon it by the Pope-Hartford Company of Connecticut, the Bank of Italy had no authority to surrender to it the bill of lading, and that hence no title passed from the Pope-Hartford Company of Connecticut to the Consolidated Motorcar Company, and consequently no right or title was acquired by the attachment proceedings.
This contention makes necessary a consideration of the evidence in the case. The only witness called on the part of appellant who gave testimony concerning the disposition which was made of the truck in question was one W. M. Phelps, who was the representative of the Pope-Hartford Company for the entire Pacific Coast. He testified that it was his duty to keep track of all shipments made by the said company and to see that all drafts were paid, and proceeded:
Q. Then what did you or your people do with that truck after it was unloaded into the warehouse, if you know? A. Well, one of the parts of my duties are, on the coast here, in shipments that are made by the Pope Manufacturing, when cars arrive here, either San Francisco, Portland, or Seattle, Los Angeles, or other places, if they are not taken up promptly, the Pope Manufacturing Company, when any of our shipments are delayed, and are not taken up, a part of my duties are, whenever I get any information on this pointI have a record of these shipmentsI go to these places and check these cars up. Now, I also have a record, as soon as the draft is paid, the Pope Manufacturing Company advises me of the receipt of the payment on that draft. Not having received notification of the payment of this draft on my return up the NorthwestI forget, just; Seattle, Portland, up there some placein checking up the cars on the records I noticed the absence of this three-ton truck, and I immediately went to the bank and inquired what had become of the truck. They informed me that the
dealers there in San Francisco had a sale for it in Reno, Nevada, and had shipped it there. I asked them on whose authority they had shipped the truck from the warehouse without paying the draft,' and they said they had done that on their own initiative, with the understanding that there was a sure sale for it here, and that, if it was not, it would be returned immediately.' I notified them at the time that that was sufficient evidence for us or our corresponding bank for us to demand payment of that draft. I immediately notified the Pope Manufacturing Company. They, in turn, made a demand on the Bank of Italy through the bank under which this draft was drawn to the Bank of Italy for the Pope Manufacturing Company for that truck.
Q. Was that the consideration for which this bill of sale was given? A. Yes, sir.
Q. As a matter of fact, did the motorcar companywhatever you call itMr. Barry is technical. * * * Q. Did the Consolidated Motorcar Company ever have anything in the nature of possession of this car, or have any right, title, or interest in it at any time?
Mr. BarryWe object on the ground that it is a conclusion; let him state the facts.
Q. What title, interest, or possession did the Consolidated Motorcar Company have in this car?
Mr. BarryI object on the ground it is calling for a conclusion.
The CourtIt calls for a conclusion. Proceed.
Q. Well, then, please state if you know whatwhether the Consolidated Motorcar Company ever had possession of this carthis one, this particular one in question. A. To my knowledge they never had possession of it.
Q. Will you state whether they paid for the car at any time? A. They never did; no, sir.
Q. Will you state whether or not they obtained from the Pope-Hartford Company of Connecticutwhether the receiver of the company, the bill of lading by which the car was carried from Hartford, Conn., to San Francisco?
A. Well, if they received that they received it from the Bank of Italy and they could not get that from the Bank of ...