
    Frankel Chevrolet Co. v. Snyder.
    (Decided December 15, 1930.)
    
      Mr. F. E. Meisel and Mr. Al Siegel, for plaintiff in error.
    
      Messrs. Bemsteen & Bernsteen, for defendant in error.
   Levine, J.

The parties appear in an order the reverse of that held in the municipal court where the defendant in error, Lillian Snyder, was awarded a judgment against the plaintiff in error in the sum of $450.

The statement of claim upon which the case was heard alleged the conversion of a certain Oakland automobile, claimed to have been owned by defendant in error.

Certain phases of this case were previously presented to this court in other litigation. In a replevin action brought by the H. T. Lathy Motor Company against the Frankel Chevrolet Company it was claimed by the Lathy Motor Company that a Lillian Snyder, who at one time owned an Oakland roadster, had executed a bill of sale in its favor, wherefore it claimed the right of possession to said roadster which was then in the possession and custody of the Frankel Chevrolet Company. The Frankel Chevrolet Company defended on the ground that Lillian Snyder, former owner of said roadster, entered into a written contract with the Frankel Chevrolet Company, by the terms of which she agreed to and did sell to said company her Oakland roadster, and the Frankel Chevrolet Company agreed to sell to her a new Chevrolet coupe; that Lillian Snyder delivered the Oakland roadster to the Frankel Chevrolet Company, and that under said agreement she was to be allowed therefor a credit of $200, as part payment for the new Chevrolet coupe which the Motor Company agreed to sell to her. It was claimed by the H. T. Lathy Motor Company, under a former ruling of the Supreme Court of Ohio, Ohio Farmers’ Ins. Co. v. Todino, 111 Ohio St., 274, 145 N. E., 25, 38 A. L. R., 1118, that no title, right or interest was transferred to the Frankel Chevrolet Company, for the reason that no bill of sale, as required by law, was executed to it; that notwithstanding the written agreement between Lillian Snyder and the Frankel Chevrolet Company, and notwithstanding delivery of the Oakland roadster by her to said company, no right, interest, or title was conferred upon said Frankel Chevrolet Company, because no bill of sale had been executed to it as required by law.

When the matter was presented to this court we departed from said former ruling of the Supreme Court on the authority of a more recent ruling by the same court in the case of Commercial Credit Co. v. Schreyer, 120 Ohio St., 568, 577, 583, 585, 166 N. E., 808, 63 A. L. R., 674, which reversed its former ruling, and wherein it was held that the right of persons to freely contract with each other is not abrogated by the requirement of the law that a bill of sale be executed, and that the same be registered in accordance with law. Accordingly this court held that, since the Oakland roadster was delivered to said Frankel- Chevrolet Company under the written agreement between the parties, the title vested in said company, and that it had a right to the possession of same. The claim of the Lathy Motor Company under its bill of sale executed to it was held as of no effect, because at the time the bill of sale was executed to the said Lathy Motor Company by Lillian Snyder she had already parted with her title to same.

The defendant in error in this suit for alleged conversion against the Frankel Chevrolet Company asserts that at the time the written agreement between herself and the Frankel Chevrolet Company was entered into there was a conversation between her and a representative of the company wherein it was agreed that, in the event she (Lillian Snyder) procured a better sale price for her Oakland automobile from some other dealer, her agreement with the Frankel Company was to be of no effect, and that, in that event, the company was to return to her her Oakland roadster.

In the trial, of this case when this parol evidence detailing this conversation between her and the representative of the Frankel Chevrolet Company was offered in evidence, objection was made to its introduction, but the trial court overruled such objection, and exception was duly taken.

Defendant in error claims that this evidence was competent; that the oral conversation was not offered for the purpose of varying, changing, or altering the terms of a written contract, but, instead, was offered to show that the written agreement was not to be binding until the happening of a certain event.

In support of this contention counsel for defendant in error cite Jones on Evidence (3d Ed.), page 730, Section 471, as follows: “In this connection we will give one of the exceptions as stated very broadly by Stephen: Parol evidence may be given to prove ‘the existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property.’ ” Stephen’s Digest of Law of Evidence (N. Y. Ed.), Article 90, page 324; Richards v. Day, 137 N. Y, 183, 33 N. E., 146, 23 L. R. A., 601, 33 Am. St. Rep., 704; Morgan v. Griffiths, 6 Exch., 70.

There is no doubt that this quotation from Jones on Evidence states the general rule.

The only question which remains is the applicability of the rule to the present case. It will be noticed that it was claimed by Lillian Snyder that, at the time she entered into the written agreement with the Frankel Chevrolet Company, there was an oral conversation between her and the representative of the company, the effect of which was that, in the , event she secured a better trade price for her Oakland automobile from some other dealer, the written agreement was to be of no effect.

We fail to see how, in view of this conversation, the same can be treated as a condition precedent. Whether or not the agreement was to remain effective depends, not on a condition precedent, but on a condition subsequent, and that is her ability to secure a better trade price for her Oakland automobile from some other dealer.

This rule enunciated by Jones and many other authorities relates only to conditions precedent, not to conditions subsequent. In our opinion, therefore, this oral conversation was incompetent, and prejudicial error was committed by admitting such evidence.

It must be observed also that, after signing the written agreement between herself and the Frankel Chevrolet Company, Lillian Snyder delivered the Oakland roadster to the Chevrolet Company, and, in view of the denial of the Frankel Chevrolet Company that such oral understanding took place, the testimony given to the effect that such oral understanding was had between the parties is, in our opinion, not dependable and must be regarded as of doubtful credence. She would not have been likely to deliver the Oakland roadster to the Frankel Chevrolet Company, if such oral understanding was had between the parties. If we eliminate this oral understanding, we have nothing left but the written contract between the parties, and the delivery of the Oakland roadster under it vested absolute title in the Frankel Chevrolet Company.

The action was for conversion. It does not need an exhaustive statement of the law to support the conclusion that an owner of property cannot be sued for converting his own property to his own use.

While not desiring to pass upon any other litigation which may take place between the parties in the future, it seems to us that, if Lillian Snyder has any remedy at all, it would have to be based entirely and exclusively upon the written contract into which she entered with the Frankel Chevrolet Company.

Holding as we do, the judgment of the municipal court is ordered reversed, and final judgment is entered in favor of plaintiff in error.

Judgment reversed and judgment for plaintiff in error.

Vickery, P. J., and Weygandt, J., concur.  