
    No. 494
    JAMES FLOWERS v. JAKAB CO.
    No. 18500.
    Supreme Court of Ohio
    Docketed April 4, 1924,
    2 Abs. 259
   This case comes before the Supreme Court on motion to certify. Flowers brought an action in the Cleveland Municipal Court on a $1,500 note given by Hosack. ■ The plaintiff asked for judgment on a note and foreclosure of a chattel mortgage on an automobile. The Jakab Co. was made a party defendant, as the automobile was in its poossession. Hosack, by way of answer, claimed an accord and satisfaction by reason of an agreement whereby Hosack delivered to Flowers another automobile on which he held another mortgage for $2,000, which was received by Flowers in full satisfaction of both mortgages.

The Jakab Co. answered, claiming that at the time of the execution of the mortgage to Flowers, Hosack had not right, title or interest in the automobile because the former had purchased the same before the execution of the mortgage. The Municipal found for Flow’ers on both issues and issued an order of sale on the automobile. At the time of bringing this action Flowers brought another action against Hosack for judgment on a $2,000 mortgage and foreclosure of a chattel mortgage securing the same. Hosack answered, setting up the same defense. Both cases were tried at the same time and judgment rendered in favor of Flowers. The Cuyahoga Appeals affirmed the judgment against Hosack on the note, but reversed the judgment against Flowers in favor of that company. The plaintiff filed a motion to certify with the Supreme Court. Flowers claimed that the Court of Appeals erred in the following respects:

1. In holding that the Jakab Co. took title to the chassis by virtue of the purchase order or contract and the delivery of the chassis to the Wagon Company to have a special body built thereon.

Attorneys — Wm. H. Chapmon and E. J. Cherney, for Flowers; Quigley & Byrnes, for Jakab Co.; all of Cleveland.

2. In holding that Hosack had no right to mortgage the automobile when it was not in his actual possession hut in his constructive possession.

3. In holding that the Jakab Co. took title to the automobile notwithstanding the violation of the Statute of Frauds.

4. In holding that the title and interest in the Jakab' Co. was superior to that of the mortgagee to the full value of the automobile, although -the Jakab Co. had failed to pay the full purchase price thereof.  