Saunders v. Mullinix

Delaplaine, J., delivered the opinion of the Court. This suit was instituted by John P. Saunders in the Circuit Court for Howard County against A. Robey Mullinix, trading as Daisy Garage Company, to recover for conversion of a Ford automobile. The case was removed to the Circuit Court for Baltimore County. That Court, sitting without a jury, rendered a verdict in favor of defendant.

Plaintiff has appealed from the judgment entered upon the verdict. It was shown at the trial that plaintiff bought the automobile from defendant on November 28, 1943, for $165. He also bought some gasoline and other supplies, which ²³⁸ brought the total bill to $178.30. He paid thereon $75 in cash and gave a promissory note for $103.30 for the balance.

This note, which was signed by himself and Sarah K. Saunders, his wife, was payable 12 months after date. Plaintiff claimed that in March, 1944, he left home on a business trip, and while he was away defendant came to his home and obtained possession of his automobile by trick and artifice. He testified that defendant induced Mrs. Saunders to let him take the automobile by telling her that he wanted to make some repairs on the motor in compliance with a guarantee he had made. Mrs. Saunders testified that defendant appeared at the front door of her home and stated that he had come for the automobile to repair it and would return it within a few days.

She gave the following account of how the car was taken: “He said he had come over after the car to fix it up because * * * the motor missed and it just ate gas. He promised to fix it without charge. He had plenty of time to fix it, he said. I didn’t know whether to let him have it or not.

I finally did. I told him I had to go to Mount Airy for my groceries. He said I would have it by Friday. I let him take, the car.

It was sitting down in front of our house. He took the car and I never saw him or spoke to him until Friday afternoon. I called him and asked him if the car was ready.' * * * He said the car was not ready. He found a broken valve in it.

He never did bring it back.” Mrs. Saunders further testified that defendant asked her on April 15 to bring him the new license tags for the car, but she declined to do so. She said that he also wanted her to transfer the title to him so that he could sell the car. She said that defendant declared that he would not give the car back, but was planning to sell it. It is not disputed that defendant held the automobile in his garage from March, 1944, until March, 1945, and on March 13,1945, he sent plaintiff a registered letter notifying him that the automobile would be sold at auction on March 24, 1945, at 3 o’clock for “storage and repair ²³⁹ bill.” At the trial, however, he swore that he did not repair the car at all, but sold it only for storage.

Defendant bought the car at the sale for the sum of $65, and later sold it for $78. Even assuming the truth of defendant’s testimony that he took the car on instructions of Mrs. Saunders, the fact remains that defendant kept the car contrary to the wishes of plaintiff and his wife. It is evident that he held it to protect his note. Defendant insisted that the note, although payable 12 months after date, was actually payable in monthly instalments.

He maintained that the requirement that the note be paid in instalments was written on the note before it was signed. In any event, defendant had no