majority">

Opinion by

Henderson, J.,

The argument of the learned counsel for the appellant gives the impression that there was a misapprehension in regard to the issue involved in this litigation. The question was one of the right of possession of an automobile which the plaintiff alleged he owned and leased to the defendant. Through the writ of replevin he sought to recover the car because the stipulated consideration was not paid in accordance with the terms of the agreement. There was a prima facie showing of the title and right of possession in him. The defense was that the transaction between the parties was not the leasing of an automobile, but the purchasing of it; that the defendant entered into a parol agreement with the plaintiff on the 8th day of May, 1917, for the purchase of the automobile and paid $200 on the purchase price and gave her note to him for the balance; and that she took possession of it pursuant to the sale. She sought to avoid the effect of the lease introduced by the plaintiff by showing that although she signed the paper she did not read it and relied on the plaintiff’s statement as to its import which was that it was designed to secure or continue the insurance on the car for the mutual advantage of the plaintiff and her; that nothing was said about a lease and it was not her intention to execute or deliver such a contract. She was corroborated by other members of her family as to what took place at the time the document was brought to her house when she attached her signature to it. The defense was therefore the assertion of ownership by purchase and a denial of the validity of the lease on which the plaintiff relied. An attempt was made to show that the plaintiff had failed to comply with his agreement by not furnishing pertain parts of the automobile not attached to or *401accompanying it at the time it was delivered. Much evidence was introduced explanatory of the conduct of the parties in the transaction which had little or no bearing on the point in controversy. Twenty of the twenty-one assignments of error challenge the accuracy of the court in parts of the charge and the answers to the points; the twenty-first relates to the rejection of evidence contained in an offer to show that the plaintiff had not complied with his agreement with Mrs. Stuber with reference to the furnishing of new tires, the adjustment of a self-starter, the connecting of the lighting apparatus and other deficiencies and defects stated in the offer. It is sufficient to say with reference to the last assignment that it covers a field of inquiry not raised by the issue. The car either belonged to the plaintiff or to the defendant; the proceeding was designed to determine which was entitled to it. The defendant having given a property bond and kept the machine could not thereby change the issue. The condition of the property was therefore not involved. If t'he plaintiff made promises which he had not kept, a different procedure would be necessary to enforce that obligation. We do not deem it necessary to examine seriatim the criticisms of the action of the court. Taking the portions excepted to with their context, we fail to find such errors as warrant a reversal. The question before the court was clearly and concisely stated to the jury and the case was presented in harmony with the legal principles involved. The opinion of the learned trial judge on the motion for a new trial covers the subject and the authorities cited are a justification of the instructions given to the jury. It was clearly the right of the trial judge to say that the question whether there had been a sale to the defendant on the 8th of May might not be considered by the jury a matter of consequence for the. whole of the plaintiff’s case was founded on the lease offered in evidence. There can be no doubt of the right of the parties to the contract to change the transaction *402from an absolute sale to a buyer’s lease so far as their individual interests are concerned; no creditors having raised: any objection. The indebtedness of the defendant to the plaintiff was a sufficient consideration as is shown'by many cases, and the only issue left therefore was the allegation by the defendant of fraud in procuring the lease. The instructions of the court on the weight of the evidence necessary to set aside such instrument on the ground of fraud were within the limits prescribed in numerous decisions of our courts; some of which are cited in the opinion of the court below. The case was an inquiry of fact therefore to be disposed of by the jury. The verdict having gone in favor of the plaintiff, we find no legal issue which calls for our interference.

The assignments are overruled and the judgment affirmed.

Citation profile

How this case has been treated — in progress