PACIFIC FINANCE CORP. OF CALIFORNIA
[76 Ariz. 208] McQuatters & Stevenson, of Flagstaff, for appellant.
Mangum & Flick, of Flagstaff, for appellee.
Plaintiff-appellant, Pacific Finance Corporation of California, on June 2, 1949 brought an action in replevin against defendant-appellee S. O. Morrow, to recover possession of an automobile, title to which was retained by it under conditional sales contract. For convenience, the parties will be referred to as plaintiff and defendant.
Two days later, pursuant to the writ of replevin plaintiff obtained possession of said automobile (minus the motor), and on January 20, 1950, it conducted a sale thereof [76 Ariz. 209] at which defendant's high bid of $150 was accepted. The car, still lacking the motor, was re-delivered to defendant. On February 20, 1950, plaintiff's complaint was amended to a tort action for conversion of the automobile and damages in the sum of $1,424.90 were sought. No objection to this singular procedure was made, and upon the amended complaint the action was tried to a jury which returned a verdict for plaintiff in the sum of $6.25. No judgment has as yet been entered.
Pursuant to sections 21-1015 and 21-1301 et seq., A.C.A. 1939, plaintiff moved to set aside the verdict and enter judgment for it in accordance with the previous motion for directed verdict, or in the alternative for a new trial. It is from the order denying these motions that plaintiff appeals.
Where an order denying motion for directed verdict is made before judgment, no appeal lies to this court from such order, as our general statute on appeals, 21-1702, A.C.A. 1939, contains no provisions authorizing such appeal. However, appeal does lie to this court from an order granting or refusing a new trial, 21-1702(2), A.C.A. 1939. Plaintiff's motion for new trial was made at the time provided by Rule 59(b), Rules of Civil Procedure, 21-1305, A.C.A. 1939, and was properly before the court for ruling. The order denying this motion forms a sufficient basis for appeal.
Construing the evidence in the light most favorable to sustaining the verdict and the action of the trial court, we find the facts to be these: Vollrath and Coleman were dealers in used automobiles in the city of Phoenix, and on November 20, 1948 they sold the automobile in question to Owen Reynolds by conditional sales contract. Reynolds paid $263.57 cash, traded in another auto, and agreed to pay a balance of $900 plus insurance and carrying charges in fifteen monthly payments beginning December 18, 1948. This conditional sales contract was immediately assigned to plaintiff by Vollrath and Coleman, and these documents were duly filed with the Motor Vehicle Division.
Reynolds drove the car to Flagstaff, and on the journey he learned for the first time that the engine thereof was not mechanically sound. During the first week in December, 1948, the car was taken to defendant's garage for repairs. After examination disclosed the motor had a cracked block and other defects and was mechanically useless, Reynolds gave written authorization to defendant to install a new motor and put the car in good shape. He promised to pay cash for the repair bill that was estimated at $375. Plaintiff was not consulted, and did not sanction making these major repairs.
During the next week defendant took the old motor out and installed a rebuilt motor or 'short block'. Defendant discarded the old motor block as useless scrap iron, and it was hauled away by a junk dealer.
[76 Ariz. 210] Reynolds could not make the promised cash payment for the repairs, and defendant insisted on keeping the car until such payment was made. The buyer defaulted on all payments to plaintiff, and his debt now totals $1,274.90.
During the early part of 1949 plaintiff and defendant negotiated concerning a practical settlement or compromise of their interests in the vehicle. Defendant never affirmatively offered to redeliver the car to plaintiff, but on the other hand, never refused to relinquish possession.
Sometime prior to the filing of the replevin action, defendant's employees took
the rebuilt motor out of the auto for the avowed purpose of repairing faulty gaskets. The replevin action, filed June 2, 1949, was plaintiff's first unequivocal demand to retake the car. The buyer, Owen L. Reynolds, was made a party to the suit and served with process, but he made no formal appearance in the case; at trial it was conceded that Reynolds was in the service, hence under the Soldiers and Sailors Civil Relief Act, 50 U.S.C.A. Appendix, § 501 et seq., and the action as to him was continued and he is not party to the appeal.
The case was tried upon the conversion theory, defendant's position being that conversion of a useless and valueless motor did not amount to conversion of the whole automobile. That this is a tenable theory, see Herring v. Blue Mound Mining Co.,124 Kan. 171, 257 P. 955, and N. ...