
    NO. 8275
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM MAYER VS. DIXIE SECURITIES COMPANY ET ALS.
    
      
    
   Dinkelspielj J.

This litigation substantially oonsists oí the following facts.

Plaintiff alleges that he is the owner of a oertain automobile, describing it as "Model T. 41, Ho. 31359 (or31369) Haynes Light 13, 7 passenger", and that on the 3nd day of Oo-tober, 1918, petitioner left said automobile with the Estop-inal Auto Exchange and Sales Rooms, located at .1515 Canal Street, in this oity, and reoeived from said Company, a receipt to the following effeot.

"Hew Orleans, 10/l3/l8/
One used seven passenger Haynes 13, Automobile. Engine Ho._as is. Price $3300.00, we to have the sale of aocount this oar for the/«masut of Mr.. Mayer to net him $3300.00 and have no charge for demonstrations and storage.
(Signed) Estopinal Auto Exohange & Sales Rooms
per S. J. Estopinal"

Alleging further that whilst said automobile was in the oare of said Company, by an aot passed before M. S. Dreyfous, H. P. on September 37th, 1930, the Estop-inal Auto Exchange mortgaged said automobile together with others, to the defendant oompany, which said mort— gage ws.s recorded in M. 0. B. 1347, folio 343. And subsequently, after said mortgage was reoorded and said automobile was inventoried as the property of the said Estopinal Company, and whilst the said automobile was in the oustody of the said oompany, the defendant oompany, The Dixie Se-. curities Company executed its mortgage and caused -said automobile to be advertised by the Civil Sheriff of this Parish for sale, at public auction, on March 31st, 1931 at the hour of ten o1clook A. M.

Alleging further that the Estopinal Oompany was without right, title or interest in said automobile and was acting as caretaker of same when it received said au-vomobile from plaintiff, and it was without authority from pl-inbiii to mortgage same to said defendant corporation. Therefore, said mortgage is null, void and of no effect.

.Alleging fhet the sale of said automobile by the Sheriff will oause plaintiff financial injury by depriving him of his said property end that he h* s no adecuóte remedy to prevent said 3ale except by injunction and the prayer finally is ’ubstcntially that plaintiff upon furnishing requisite bond S3 fixed by l°w, his affidavit being considered, that a writ of injunction he issued temporarily restraining the Civil Sheriff of this Perish, the defendant Corporation, the Dixie Securitise Company and Edward B. Ellis, Receiver for the Estopine.l Company, from Gelling or otherwise disposing of said vutomobile described in his petition and vhet all parties be duly cited to ippesr end after proceedings had that there be judgment in hi3 fever deorseing him to be the owner of said automobile and os such entitled to the possession thereof.

This petition was sworn to and a temporary injunction as prayed for vías allowed, upon plaintiff furnishing bond in the sum of Two Hundred and Fifty Dollars, conditioned as the law directs.

The bond being furnished the Sheriff and the other parties, under orders of the Court, were restrained and prohibited from proceeding in Shis matter until further orders of the Court.

To this petition there w;s first filed an exception of improper joinder of parties and aleo an exception of no richt or oause of action.

Subsequently an answer was filed on behalf of defendant Sompany, which denied all and singular the allegations contained in plaintiff's petition, and alleged substantially, admitting that whilst the automobile described in plaintiff's petition was in the cere of the Estopinal Motor Company, that by act before M. s. Drey-fous, H. P. of date September 37th, 1930, the automobile in question was mortgaged, together with others, to the defendant Company for the sum of $3950.00, and the mortgage was properly recorded in the mortgage office. Finally the answer states that plaintiff is or should he es-topped to.urge the ownership of the automobile sued upon for the reason, that in the event that all of the allegations oontained in plaintiff's petition were true, whioh defendant denies, then in that event plaintiff permitted his property to remain,in the oare and custody of the Es-topinal Motor Company, a lioensed daitlasi dealer in automobiles; that he made no declaration of ownership, or caused no suoh declaration to be put of record in the mortgage offioe, but that- he waited until said property was removed from the premises of the Estopinal Motor Company and permitted the ownership of this said property to remain vested in the Estopinal Motor Company, and upon the representation made by the President of the Estopinal Motor Company, that same was the property of the oompany, and on the faith of these representations and aoquiesoed in by silence and oonduot of the plaintiff, defendant believed that said property belonged to the Estopinal Motor Company and in this belief, and as an innooent third person, advanced money to the Estopinal Motor Company, who mortgaged said property to the defendant as heretofore stated. Admitting that the said corporation went into the hands of a reoeiver end that by reason of said wrongful conduct on the part of the plaintiff, defendant was lead and induced to part with its money, and therefore plaintiff should be forever estopped from urging the ownership of said automobile to the prejudice of and detriment to defendant. Defendant prays that the demand of plaintiff be rejected with costs.

This answer was sworn to by the attorney for the Reoeiver.

This issue was tried and without entering into the testimony of either party to this litigation, it is evident that plaintiff he.s fully established his case in accordance with the allegations of his petition. - He was the owner of the automobile whioh was stored in the Estopinal Motor Company -and was to he sold by the company at a prioe agreed upon by both parties and as per receipt annexed and exhibited in -this transoript. It is proven to our satisfaction that the Estopinal Company mortgaged this property to -the defendant company, and were on the eve of selling same but for the injunction proceedings now in controversy.

The Judge of the Court aquo heard the testimony in this oase, and deoided finally, after refusing a rule for a new trial, in favor of the defendant company, dissolving the injunction and from this Judgment there is this appeal, and as stated, the question of fact being virtually admitted, so far as the mortgage is concerned and the ownership of the automobile being proven to be in plaintiff the other matters left for our determination are matters of law alone.

The Civil Code, Art.-3453.

The sale of a thing belonging to another person is null; it may give rise to damages when the buyer knew not that the thing belonged to another person.

A fraudulent sale of personal property, although followed by possession gives no right of property to the purchaser.

Weld vs. Donlin 13 La. 461.

In the oase of Lellande vs. His Creditors, 43nd Ann. 710, the Court emongst other things says:

The dootrlne that a factor cannot pledge the property of another is maintained so strictly that it is admitted he oan not do it by endorsement and delivery of the bill of lading any more than by deliver of the goods themselves. To pledge the gooda of the principal is beyond the scope of the faotor's power; and every attempt to do it under the oolor of a sale is tortious .and void.

Citing 3 Kent, p. 626.

On the question of law the dootrine is well settled that-the factor oannot pledge for his own debts property consigned to him, nor can he give it in payment of his own debts.

Citing Bonnot vs. Fuentes, 10 Ann. p. 70.

Youngyagainst Scott 35 Ann. 313.

On the same subject matter, in the case of Holten and Winn vs. Hubbard & Company et als, 49 Ann. p. 715, the dootrine in the Lellande vs. His Creditors 43nd Ann. 705, was re.terated and affirmed and application for rehearing in that case the Court at page 739 says "From an early period rur courts have enforced the principle that the factor could not for his own debts pledge the property of his principal, and that such pledge v/as no impediment to a recovery by the owner.

For the reasons assigned, it .is ordered, adjudged and decreed, that the judgment of the Court aquo be and the same is hereby Eeversed, set aside and annulled.

It is further ordered, adjudged and decreed that the Civil Sheriff for the Parish of Orleans; the Dixie Seourities Corporation and Edward B. Ellis, Reoeiver of the Estopinal Auto Exchange, or their agents, be enjoined from selling or otherwise disposing of said automobile herein described and that 'the injunction applied for be maintained and perpetuated.

It is further ordered, adjddged and decreed that plaintiff, William Mayer, is deoreed to be the owner of said automobile, and that there be judgment in his favor decreeing him to be such owner. The costs of both Courts are to be taxed against the defendants, Edward B. Ellis, Reoeiver of the Estopinal Motor Company,and the Dixie Seourities Company.  