
    No. 318
    JAKAB CO v. FLOWERS et al
    Ohio Appeals, 8th Dist., Cuyahoga County
    No. 5077.
    Decided Feb. 4, 1924
    229. CHATTEL MORTGAGE — Mortgagee accepting m.ortgage on automobile not in possession of mortgagor, takes at his peril.
    Attorneys — Quigley & Byrnes, for the Jakab Co.; Smart, Ford, Taylor & Hasselm'an, for Flowers, all of Cleveland.
   VICKERY, P. J.

Epitomized Opinion

Published Only in Ohio Law Abstract

James J. Flowers, as plaintiff, brought two actions in the Municipal Court of Cleveland, one action being taken against the Jakab Co. to recover possession of a certain automobile, the other action was against Lawrence L. Hosack based on certain promissory notes Hosack had given to Flowers. The two cases were tried together by consent of all parties. On March 13, 1922, Hosach sold, to Jakab Co. an automobile for $2,089.50. The Jakab Co. took the car to a wagon company and ordered a body built for the car, later paying the wagon company $2,600 for building the body. Thereafter Hosack gave a chattel mortgage on this car to Flowers to secure notes for $1,500. In Municipal Court, Flowers obtained judgment in both actions. Both defendants brought error proceedings. Held:

At the time the Jakab Co. bought the car there was nothing on record against it. The Jakab Co. was an innocent purchaser and their interest in and title to this property was prior to1 the mortgage given to Flowers. At the time the mortgage was given Hosak did not have possession of the car and the mortgagee took it at his peril. Judgment ag-ainst the Jakab Co. reversed and remanded.

As to the case against Hosak it was a question of the weight of the testimony in the court below. Hosack’s conduct in mortgaging the car renders his testimony suspicious.' The judgment against Hosack will be affirmed.  