
    Lex Mayers Chevrolet Co., Inc., Appellant, v. Buckeye Finance Co., Appellee.
    
    (No. 5872
    Decided May 20, 1958.)
    
      Mr. Frank B. McClelland, for appellant.
    
      Mr. Phillip V. Stout, for appellee.
    
      
       Judgment affirmed, 169 Ohio St., 181.
    
   Petree, P. J.

This is an appeal on questions of law from a judgment of the Municipal Court for the defendant, appellee herein, for costs.

Plaintiff, appellant herein, claims damages from the defandant by reason of the following facts. It took an assignment from one Gerald M. Phenice and allowed Gerald Phenice the amount of $880.63 as trade-in value for a 1954 Harley-Davidson motorcycle on which there was a balance due to Buckeye Finance Company, appellee herein, in the total amount of $90.63, which included the full amount of the motorcycle and the insurance thereon. A net credit of $790 was applied in favor of Gerald M. Phenice on an automobile which he purchased from plaintiff.

Plaintiff called defendant to ascertain the balance due, was informed that it was $90.63, and sent a check which was cashed by defendant in about three days.

The stepfather of Gerald Phenice, Mr. Ealph Martin, had taken the title to the motorcycle in his own name but had signed a blank power of attorney, and the same was turned over to plaintiff. Ralph Martin claims no interest in the motorcycle and is not requesting that a certificate of title be made in his name. However, a memorandum certificate of title had been issued in the name of Ralph Martin at the time the purchase was made, August 16, 1955.

The account was carried by the defendant company in the name of Gerald Phenice, according to plaintiff’s exhibits 3 and 4, exhibit 3 being the amount of payments on the loan and exhibit 4 being the amount of payments on the insurance contract, except, in each case, the last payment, which was made by the plaintiff.

After accepting the money for the final payment on the insurance and the motorcycle from the plaintiff, defendant kept the certificate of title and levied on the motorcycle. It was sold on execution for $420, which the defendant finance company retained and credited itself upon an account entirely foreign to this motorcycle transaction, an unsecured loan of Ralph Martin, stepfather of Gerald Phenice.

The evidence shows that Gerald Phenice became 21 years of age before he traded in the motorcycle to plaintiff company; that he was assured by Sam N. Alfred, president of the Buckeye Finance Company, before making an assignment to plaintiff company, that as long as he made the payments on the motorcycle and paid the money they could not take his “bike” from him; and that the Buckeye Finance Company accepted the payments from Gerald M. Phenice, except the last payment which was made in his behalf by the plaintiff company.

By the course of action of the defendant in accepting the payments of Gerald Phenice on the motorcycle and the account on which he was paying after he was 21 years of age, and in assuring him that he would not lose his motorcycle as long as he made payments, the defendant company should not now be permitted to take unfair advantage of Gerald Phenice by levying on the motorcycle and keeping the $420 which it brought on execution.

The defendant company cannot lull Gerald M. Phenice to sleep by encouraging him to leave the motorcycle in the name of Ms stepfather after he was 21 years of age, accept the money in full on the motorcycle from him and his assignee, the appellant herein, plaintiff below, and then collect over again $420 by the sale of the motorcycle wMch defendant wrongfully left in the name of Ralph Martin.

If, as the trial court said, “Gerald Phenice after becoming twenty-one could have had the title transferred to his name by that regular method,” it seems only fair to require defendant to respond in damages to plaintiff for refusing to accord it the rights of Gerald Phenice that it has acquired by assignment. The position of the plaintiff is strengthened in Ms suit for damages by the fact that defendant accepted $90.63 from it and kept this amount also.

Defendant finance company having accepted payment in full for the motorcycle in question from Gerald PheMce and Ms assignee for value, the appellant herein, plaintiff below, under the conditions set out in the foregoing paragraphs of this opinion, defendant is estopped to deny the rights of the plaintiff. As a consequence, defendant must respond in damages in the amount of $880.63.

20 Ohio Jurisprudence (2d), 489, Section 28, is in point. It reads as follows:

“The purpose of equitable estoppel is to prevent actual or constructive fraud, and the doctrine should always be so applied as to promote the ends of justice. In determining its application the counterequities of the parties are entitled to due consideration. The doctrine is available only in defense of a legal or equitable right or claim made in good faith, and can never be used to uphold crime, fraud, injustice, or wrong of any ldnd.”

In 20 Ohio Jurisprudence (2d), 494, Section 31, we read:

“An estoppel arises when one is concerned in or does an act which in equity will preclude him from averring anything to the contrary, as where another has been innocently misled into some injurious change of position.”

That quotation is from the last five lines of the text on page 494.

Since the plaintiff has advanced in cash and credit the amount of $880.63 for the motorcycle in question, to wMch it was entitled and which was taken from its possession and sold by the defendant, the judgment of the trial court should have been for the plaintiff in the amount of $880.63. The plaintiff’s assignment of error is well taken. The judgment is reversed, and the cause is remanded with instructions to enter judgment in accordance with this opinion.

Judgment reversed.

Bryant and Miller, JJ., concur.  