KELSOE et ux.
GROUSKAY et ux
Judgment reversed with instructions.
Stephen B. Rayburn, of Phoenix, Morgan & Locklear, of Phoenix, for appellants.
Brown & Langerman, of Phoenix, for appellees.
Phelps, Justice. La Prade, C. J., and Udall, Stanford and De Concini, JJ., concurring.
[70 Ariz. 154] This is an action in replevin instituted by appellees hereinafter called plaintiffs, against appellants, hereinafter called defendants, for the possession of a 1942 Studebaker automobile. Defendants denied generally the allegations of plaintiffs' complaint and filed a cross-complaint for recovery of possession of the car or for its value and for damages for loss of its use and for its depreciation.
The facts are that plaintiffs were the owners of the automobile in question and in April, 1947, sold it to one Phillip A. Karlyle for the sum of $ 1,495. Karlyle gave plaintiffs one $ 100 bill and his check upon a local bank for $ 1,395, being the balance of the purchase price. Plaintiffs thereupon delivered the car to Karlyle and also delivered to him the certificate of title thereto duly endorsed in blank. Negotiations between plaintiff and Karlyle had been pending for two or three days and were finally consummated in the evening of April 29th. Early the following morning Karlyle sold the Studebaker car and a 1935 Chevrolet to defendants for $ 1,000 cash. Karlyle represented to defendants at the time of the sale that he had purchased the Studebaker for his wife but had a telegram that she was ill in California and that he had to sacrifice the cars in order to go to her. He stated he owned a home in Phoenix but that he could sell the cars more quickly than he could sell the home. He first asked $ 1,100 for the two cars but later accepted defendants' offer of $ 1,000. Defendants went to the bank and got the cash and paid for the cars after they had been told by a brother-in-law who was then engaged in the second-hand car business that he considered it a good buy, and that the titles were all "okay".
The certificate of title to the Chevrolet stood in the name of Karlyle. He endorsed this certificate and turned it over to defendants. He also delivered to defendants at the time the certificate of title to the Studebaker endorsed in blank by Mr. Grouskay.
On April 30th as soon as the bank opened at 10:00 A.M. plaintiffs presented the Karlyle check to the bank upon which it was drawn and payment thereof was refused upon the ground that Karlyle had no funds in the bank.
Defendants on the same day made application to the Motor Vehicle Department of Arizona for transfer to them of title to both cars. Title issued to them immediately for the Chevrolet. Title was held up temporarily on the Studebaker but was later issued by the department to defendants.
[70 Ariz. 155] Plaintiffs, after locating the Studebaker, brought this action in replevin against defendants. The cause was tried to a jury but at the conclusion of all of the evidence the case was withdrawn from the jury and a verdict instructed for plaintiffs on the complaint and for cross-defendants on the cross-complaint. From the judgment entered thereon ...