Opinion
October 10, 1934.
November 26, 1934.
Sales — Title — Right of vendor to buy back chattel — Right of vendee to dispose of chattel — Sole and unconditional ownership — Policy of fire and theft insurance.
1. Where a debtor sells a chattel owned by him to his creditor for the amount of the debt but reserves the right to buy back the chattel from vendee, if the latter had not already disposed of it, on payment of what had been due by him, such right does not make the title of vendee conditional, and vendee has sole and unconditional title within the meaning of a policy of fire and theft insurance. [14-15]
Practice — Verdicts — Amount — Evidence — Valuations of chattel.
2. In an action to recover on a policy of fire and theft insurance, in which the plaintiff's testimony as to the valuation of the automobile insured at the time it was destroyed was $8,000, and defendant's testimony as to the valuation was $4,175, a verdict of $3,825 was held not to be capricious, or against the evidence, or excessive. [14]
Argued October 10, 1934.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 253, March T., 1934, by defendant, from judgment of C. P. Allegheny Co., July T., 1932, No. 4010, in case of John Saxman v. United States Fire Insurance Company of New York. Judgment in this case is affirmed on the opinion of the learned trial judge of the court below.
Assumpsit on policy of insurance. Before GRAY, J.
The facts are stated in the opinion of the lower court, GRAY, J., as follows:
The verdict was for the plaintiff for $3,825. The defendant has made a motion for a new trial and also for judgment non obstante veredicto. The question submitted to the jury was whether plaintiff had the sole and exclusive title to the Duesenberg automobile which was destroyed by fire, and if so, what the valuation of it was at the time it was destroyed.
Plaintiff was the secretary of R. L. Babcock, who was indebted to the plaintiff in the sum of about $1,900. The testimony is that Babcock sold a Duesenberg automobile for which he had paid $14,250 to plaintiff in satisfaction of the debt which he owed him. Both Babcock and Saxman testified that the sale was absolute and outright. It is not disputed that, after the title was registered in the name of the plaintiff, Babcock used the Duesenberg automobile as if he was the owner of it up until the time it was stolen from him and destroyed by fire. The arrangements between Babcock and plaintiff were oral, and the testimony in regard to it disagreed somewhat as to the language describing it, but the substance of it was as hereinbefore stated, except this, that plaintiff admitted that Babcock had a right to buy the automobile back from him on tendering him the amount due from him if he did this before the plaintiff converted it into money, which the plaintiff asserted he had the absolute right to do at any time. The question of title was submitted to the jury and found in favor of the plaintiff.
Plaintiff's testimony as to the valuation of the Duesenberg automobile at the time it was destroyed was $8,000; defendant's testimony as to the valuation was $4,175. Just how the jury arrived at the sum of $3,825 we are unable to figure out, but the question was for them and we cannot say the verdict is capricious, or is against the evidence, or the weight of the evidence, or that it is excessive. The motion for a new trial will be refused.
The only basis for the motion of defendant for judgment non obstante veredicto is the testimony that Babcock had some right to buy the automobile back from plaintiff on the payment of what had been due from Babcock to plaintiff provided this was done before plaintiff exercised the right to dispose of the automobile and realized whatever cash could be obtained for it. If the testimony of the plaintiff and Babcock is to be taken on its face, as the jury evidently did, this arrangement with Babcock did not vest any title in him or render the plaintiff's title conditional and, therefore, there is no basis for the judgment non obstante veredicto, and that motion will be denied.
Verdict and judgment for plaintiff for $3,825. Defendant appealed.
Error assigned was refusal of judgment n. o. v., quoting record.
Robert D. Dalzell, of Dalzell, Dalzell, McFall Pringle, for appellant.
Harry E. McWhinney, with him Nicholas Unkovic, for appellee.
The judgment in this case is affirmed on the opinion of the learned trial judge of the court below.