
    DEVER, Respondent, v. GIRSON, Appellant.
    (No. 5,836.)
    (Submitted February 9, 1926.
    Decided February 18, 1926.)
    [243 Pac. 812.]
    
      Claim and Delivery — Automobiles—Bailment—Estoppel—Evi~ denoe — Rebuttal.
    New Trial — Order Denying not Appealable.
    1. Under section 9745, Revised Codes of 1921, an appeal from an order denying a new trial is no longer appealable.
    Claim and Delivery — Bailment—Automobile Left for Repairs With Privilege of Use — Estoppel.
    2. The owner of an automobile who entrusted it to a mechanic for the purpose of - making repairs with the privilege of using it and who used it for about a month and thereupon sold it did not thereby hold out the latter as the owner so as to estop himself from maintaining an action in claim and delivery against the purchaser.
    Same — Evidence—Rebuttal—When Properly Admitted.
    3. Where defendant in an action in claim and delivery in his evidence had endeavored to trace his title to the property in question to one other than the one from whom plaintiff had bought it, plaintiff was properly permitted to show in rebuttal that the first owner had sold it to the person from whom plaintiff made his purchase.
    
       Appeal and Error, 3 C. J., sec. 337, p. 507, n. 61.
    
       Estoppel, 21 ,C. J., sec. 181, p. 1178, n. 17.
    
       Replevin, 34 Cyc., p. 1507, n. 56 New.
    2. See 10 R. C. L. 777.
    
      Appeal from District Court, Missoula County; Theodore Lentz, Judge.
    
    
      Action by H. H. Dever against Dave Girson. Judgment for plaintiff and defendant appealed from the judgment, and attempted to appeal from an order overruling motion for new trial.
    Latter appeal dismissed, and judgment affirmed.
    
      Mr. DeWitt Law, for Appellant, submitted a brief and argued the cause orally.
    Citing: 21 O. J. 1172; Capital Lumber Co. v. Barth, 33 Mbnt. 94, 100, 81 Pac. 994; Scott v. Prescott, 69 Mont. 540, 556, 223 Pac. 490; Colwell v. Grandin Inv. Co., 64 Mont. 518, 526, 210 Pae. 765; National Safe Deposit Co. v. Hibbs, 229 U. S. 391, 57 L. Ed. 1241, 33 Sup. Ct. Rep. 818 [see, also, Rose’s U. S. Notes] ; Kempner v. Thompson, 45 Tex. Civ. App. 267, 100 S. W. 351, 352.
    
      Mr. Carl T. Brown, for Respondent, submitted a brief and argued the cause orally.
    Citing: 25 R. C. L., p. 760; Shafer v. Lacy, 121 Cal. 574, 54 Pac. 72; Hildeburn v. Nathans, 1 Phil. 567; Calhoun v. Thompson, 56 Ala. 166, 28 Am. Rep. 754; Jillson v. Wilbur, 41 N. IT. 106; Ryle v. Knowles Loom Works, 59 U. S. App. 653, 87 Fed. 976, 31 C. C. A. 340; Kiewel v. Tanner, 105 Minn. 50, 25 L. R. A. (n. s.) 772, 117 N. W. 231; Lemp Brewing Co. v. Mantz, 120 Md. 176, 87 Atl. 814; Diebolt v. The Chester Hair, 4 Fed. 571; Levi v. Booth, 58 Md. 305, 42 Am. Rep. 332; Bennett Bros. Co. v. {Tam) Fitchett, 24 M'ont. 457, 62 Pac. 780; First National Bank v. Montgomery Cotton Co., 211 Ala. 551, 101 South. 186; Anthony v. Midwest- Live Stock Com. (Mo.), 260 S. W. 94; Lloyd v. Macullum-Donahoe Co., 127 Wash. 180, 219 Pac. 849; Clay Robinson & Co. v. Martinez, 74 Colo. 10, 218 Pac. 903; Dorsey v. Kemble (Tex. Civ. App.), 224 S. W. 217; Roberts v. Luhin, 25 N. M. 658, 187 Pac. 551.
   MR. JUSTICE STARK

delivered the opinion of the court.

This is an action in claim and delivery. According to the complaint, at all times subsequent to the twentieth day of July, 1924, tbe plaintiff owned, and was entitled to tbe possession of, a seven-passenger Haynes touring car. About the-day of August, 1924, defendant wrongfully, and without plaintiff’s consent, obtained possession thereof, and, after demand, refused to surrender the same to the plaintiff. Defendant’s answer was a general denial.

The case was tried to a jury, and resulted in a verdict and judgment in favor of tbe plaintiff. Defendant made a motion for a new trial, which was overruled. He appealed from the judgment, and has attempted to appeal from the order overruling his motion for a new trial. This attempted appeal is dismissed. (Sec. 9745, Eev. Codes 1921.)

Plaintiff’s testimony tended to establish that he purchased the car in question from a man by the name of Gratton; that after he acquired the car he turned it over to one Fetchiek, a soldier and mechanic at Ft. Missoula, to be repaired, with the privilege Of using it. Fetchiek kept the car in his possession, and used it about a month, when he and another soldier, by the name of Walerwicz, took it to the defendant, and traded it to him as part payment for a Studebaker car. Soon thereafter Fetchiek deserted from the army. Upon learning this latter fact, plaintiff searched for the car, found it in defendant’s possession, made demand for it, which was refused, and thereupon instituted this action to recover it.

The evidence on the part of the defendant tended to establish that W. H. Gardner purchased the car in question from a garage man named Wickes, and then sold it to one Hagan, who paid all the purchase price, except $7.50; that Hagan then made a deal with Fetchiek for a sale of the ear to him, and the latter, in company with Walerwicz, took it to the defendant’s place of business, and traded it in as part payment of a Studebaker car; that, before the defendant traded with Fetchiek and Walerwicz, he had his agent make investigations to ascertain whether Gardner had parted with all his title to the car; that, upon learning that Gardner still claimed there was $7.50 due to him on the car, Gardner, Hagan, Fetchiek, Walerwicz and tbe defendant met and made arrangements whereby Gardner was paid bis $7.50, and released bis claim.

At tbe close of all tbe evidence defendant moved tbe court to direct tbe jury to return a verdict in bis favor, which motion was denied, and this ruling is made tbe basis' of bis first assignment of error.

In this connection tbe defendant does not seriously contend that Fetchiek in fact became tbe owner of tbe car in bis transaction with Hagan, but be argues that tbe plaintiff, by placing Fetchiek in possession of tbe car for repairs, and allowing him to use it for a period of about one month, estopped himself from claiming title and right of possession of tbe car against the defendant, who parted with value in acquiring it from Fetchiek and Walerwicz. It will be noted that there was no testimony that tbe plaintiff did, or omitted to do, any other act of a nature tending to mislead tbe defendant into a belief that either Fetchiek or Walerwicz was clothed with apparent authority to sell tbe ear.

Merely entrusting a third party with tbe possession of personal property does not constitute bolding him out as owner so as to estop tbe real owner from claiming tbe same from one who purchases it from tbe possessor. • (Shafer v. Lacy, 121 Cal. 574, 54 Pac. 72; Lemp Brewing Co. v. Mantz, 120 Md. 176, 87 Atl. 814; 21 C. J. 1178.)

Under tbe evidence, tbe plaintiff was not estopped to assert bis ownership of tbe car, and tbe court did not err in submitting tbe case to tbe jury.

Appellant’s other assignments of error are to the effect that tbe trial court erred in permitting certain evidence to be admitted in rebuttal. Tbe defendant undertook to trace his title to tbe car back to Gardner, who sold it to Hagan, through whom Fetchiek acquired title that be and Walerwicz claimed to transfer to tbe defendant. In rebuttal tbe plaintiff introduced evidence tending to show that Gardner did not sell tbe ear to Hagan, but in fact sold it to Gratton, from whom the plaintiff acquired title. This evidence was properly admitted. No error appearing in the record, the judgment is affirmed.

Affirmed.

Mr. Chief Justice Callaway and Associate Justices Holloway, Galen and Matthews concur.-  