Appellee, a resident of Lonoke, in his suit against appellant, a used car dealer in Little Rock, for conversion of appellee's automobile by appellant, was awarded damages in the sum of $450 by the trial jury. From judgment in accordance with the verdict, appellant prosecutes this appeal.
Appellee, being the owner of the automobile involved herein, sold same to Norman Fitch for $550 of which $100 was paid and a note to appellee, by which title to the car was retained in appellee until purchase money was paid, was executed by Fitch for the balance. A short time thereafter Fitch traded the car to appellant. Upon learning of the trade appellee went to Little Rock and found the automobile on appellant's lot, and according to appellee's testimony, he was told by *Page 573 appellant that, if he would bring his papers to show ownership, he could get the car. On his return with the papers, the following day, he was unable to obtain the car. It was also shown that when Fitch traded the automobile to appellant the registration certificate which Fitch had was made out in appellee's name.
Appellant testified that he sold the car the same day that he obtained it. Admitting that the car was on his lot when appellee and his employer came to see him about it, he stated that it was there "for a check-over." He stated that he sold the car before he found out about appellee's claim, but had re-possessed it and had it at the time of the trial.
The lower court denied appellant's request for a peremptory instruction in his favor, but gave the following instructions as to appellant's liability: "If you find that plaintiff was the owner of the 1937 Chrysler, that he notified defendant of his title while the car was in defendant's control and demanded it from defendant, and that defendant, despite such notice and demand, sold the car, such an act on defendant's part would be a conversion by defendant of plaintiff's personal property and you will find for plaintiff."
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"You are instructed that if you find from the evidence that the defendant Phil Schwartz had parted with his title to and control over the automobile involved in this lawsuit prior to any notice given him by the plaintiff of his claim of ownership then you will find for the defendant Phil Schwartz."
Appellant's contention is that the facts in the case at bar and those in the case of Loden v. Paris Auto Co.,174 Ark. 720, 296 S.W. 78, are identical, and that our decision in that case controls here. In the Loden case we denied to a vendor, holding a "title-retaining" note for purchase money, recovery for conversion of the automobile sold by him in his suit against a dealer who had bought the automobile from the vendee, and who had in due course of business re-sold the same. But in that *Page 574 case, as we stated in our opinion, the dealer bought the car and re-sold it without any knowledge of the original vendor's claim. In the case at bar there was substantial evidence to show — and the jury must have found — that the appellant knew of appellee's title before making disposition of the car. Therefore, appellant's sale of the car, after he learned that appellee really owned it, was not a transaction made in good faith or in the usual course of business. Such a sale amounted to a conversion of the property, for which appellant became liable to appellee. Estrich, Installment Sales, 408-414. Carroll v. Wiggins, 30 Ark. 402.
The judgment of the lower court is affirmed.
The Chief Justice did not participate in consideration or decision of this case.