This cause comes into this court on a petition in error to the municipal court of the city of Cleveland, the purpose being to reverse a judgment for $892 in favor of the defendant in error, Frank J. Kalfas, who was plaintiff below.
From the record, argument of counsel and briefs, we learn that some time in June, 1927, plaintiff below bought a Nash automobile from the Miles Motor Company, and agreed to pay therefor, in trade and otherwise, the sum of $2,155, and that after being credited for payments that were made and things that were taken in exchange, there remained a balance due of $912, for which Kalfas executed a chattel mortgage upon the automobile and executed a cognovit note for $912 payable in twelve monthly installments of $76 each. There was an acceleration clause in the note and mortgage to the effect that if any of these payments became due and unpaid, the whole amount should at once become due at the election of the holder of the mortgage.
Shortly after this transaction this mortgage and the notes secured thereby were transferred to the Metropolitan Securities Corporation. When the first installment became due in July, 1927, it was not paid, nor were the August and September installments paid, and in October the Metropolitan Securities Corporation elected to have the whole note become due, and possessed itself of the car, as it had the right to do under and by virtue of the chattel mortgage, and it at the same time brought suit upon the note and secured a judgment, and *Page 440 execution was issued and a levy made on the car. Whereupon Kalfas, the plaintiff below, defendant in error here, went to the officers in charge of the Metropolitan Securities Corporation and entered into an arrangement whereby he paid up the amount that was then due, amounting to something over three hundred dollars, and paid the costs of the lawsuit, and the car was then returned to him; he agreeing to pay the installments as they matured thereafter.
Notwithstanding this agreement, Kalfas failed to pay the November and December installments, and in January the Metropolitan Securities Corporation again took possession of the car, taking it, I believe, from the street where the plaintiff below had left it. This was in the latter part of January, 1928. After they had repossessed themselves of this car the second time, Kalfas again went to the office of the Metropolitan Securities Corporation and talked with the officers, and did not want them to dispose of the car for five or six weeks, promising that in the meantime he would raise the money not only to pay the payments for which he was in default, but likewise to pay the entire sum that was due, about six hundred dollars, I believe.
On March 7th, five or six weeks thereafter, Kalfas wrote a letter in which he indicated that he hoped to get the money by a loan upon the car, and that he would take up the note and settle the whole matter in a few days. At that time the Metropolitan Securities Corporation still had the car, they, in the meantime, having issued another execution upon the car and upon sale by the bailiff having bought the car in for seven hundred and fifty dollars *Page 441 on the 27th day of February. On March 7th, as already stated, the letter was written by Kalfas relating to this car.
On the 22d of March, almost a month thereafter, up to which time the company had this car — and from the record the company during this period would have been glad to have turned it over to Kalfas upon the payment of the balance that was due upon it — the company as it had a chance to sell it to another person, and having waited more than five or six weeks, sold it to some third person for, I believe, seven hundred and fifty dollars, the amount for which it had purchased the car at the bailiff's sale.
Whereupon this suit was brought in conversion, and upon the trial of the action the plaintiff recovered from the company the full amount of the claim, or $892, and it is to reverse that judgment that error is prosecuted here.
Several errors are urged why this judgment should be reversed, but all we need to discuss is the charge of the court. One has only to read the charge to see how little the court comprehended the nature of the action that was pending before it. That part of it now referred to is as follows: "So the only question for the jury to determine is, in taking the car did the defendant use that degree of care, did he use that utmost care, that is the highest degree of care, which an ordinarily prudent person, an intelligent person, would use in preserving the interests of the plaintiff at this particular sale?"
What in the world that had to do with the suit before the court is beyond this court to discover. We have asked the learned counsel for the defendant *Page 442 in error to explain it, and they are not able to convey any better notion to the court as to what the charge means than the court itself had. Remember this is an action in conversion, and if the car was converted it was converted purposely, with the obvious intention to appropriate it, and so the question of "care," such as was described in this charge, was utterly beside the question, and had nothing to do with it; and if there were no other error in the record than this, it would compel the court to reverse the judgment.
But coming again to the same charge on the measure of damages, we beg to remark that it would be difficult to find another charge like it. That part of the charge now referred to is as follows: "Now, if you believe from a preponderance of the evidence, ladies and gentlemen of the jury, that this car at the particular time it was taken from the plaintiff was worth $1500, and if you further believe that it was sold at a price which would shock the conscience of an ordinarily prudent and intelligent person, and it was sold or bought by this defendant for the sum of $750, then, ladies and gentlemen of the jury, it is your duty to determine what particular price between $750 and $1500 would be, under all of the circumstances, a reasonable price for that particular automobile."
Our judgment is that if the plaintiff was entitled to recover in the court below the amount would be the difference between the value of the car as it was when it was sold and converted by the defendant below and the amount for which the defendant had sold the car; and the "shocking of conscience," no matter how tender it might be, would have nothing *Page 443 to do with the liability of the defendant for wrongfully converting the car. For this reason we would be compelled to reverse this case.
The judgment of the writer of this opinion is that inasmuch as this car was sold at public vendue at a bailiff's sale, the purchaser, or the Metropolitan Securities Corporation, would only have to be accountable for what it brought. There probably is no rule or law requiring other than a public notice being given in accordance with law, not especially notifying the defendant that his car would be sold. The sale on execution is a matter of public record, and is different than it would be if the company had taken the car on their mortgage and sold it under the mortgage. Then the company probably would be compelled to notify the defendant, the plaintiff below, and would be accountable for the reasonable value of the car if it took it in for less than the reasonable value, but that rule does not obtain where it is sold on execution; so the writer of this opinion thinks that under no circumstances can the plaintiff below maintain this kind of a suit unless there was an agreement that was broken, but so far as that agreement is concerned, there was no consideration for it, and the agreement would not amount to anything as a legal contract unless it were based upon a consideration. All the money having become due, agreeing to pay a part of it or all of it would not be a consideration for an extension of time. There would have to be some new consideration outside of this sum, and this record shows from the defendant in error's own testimony that the parties did wait, and kept this car long after the five or six weeks had passed. *Page 444
So, under no circumstances, does the writer of this opinion think that a recovery could be had. It is admitted, however, in court, by the able counsel for plaintiff in error, that the defendant should have a credit for $117.48, representing installments that were received, and for which credit had not been given; and if that were the only error in the judgment, we could modify it so that it would stand for that much, but the charge being so erroneous and so foreign to the matter in hand, the only thing we can do is to reverse the judgment and remand the case to the court below. At the same time we suggest that the parties had better get together and the defendant pay or tender the $117.48 that it admits owing, and presumably is ready to pay.
Judgment reversed and cause remanded.
LEVINE, P.J., and WEYGANDT, J., concur.