The dissenting opinion heretofore filed by the writer is withdrawn and the following is submitted as a dissent to the majority opinion and as a dissent to the proposed order dismissing the petition for a rehearing:
This is an action in claim and delivery for the possession of a certain Buick automobile, which was seized by the defendant *Page 53 Sheriff of Horry County, while being used in transporting a lot of contraband liquor. The car was owned and was being operated by one H.P. Anderson. The plaintiff claimed the right of possession under a certain conditional sale contract, practically a chattel mortgage, executed by Anderson to one Rivenbark and assigned by Rivenbark to the plaintiff and guaranteed by him.
(In the opinion of Mr. Justice Blease it is stated: "There was some evidence to show that Anderson * * * bought the Buick automobile from Rivenbark; * * * he paid $552.00 in cash and executed, not to Rivenbark, but, at Rivenbark's instance, to the appellant a conditional sale contract, covering the automobile," etc. This is clearly an inadvertent statement, as the contract in evidence shows that the contract was executed to Rivenbark, as plainly as language could express. The statement, further, is inconsistent with the further statement contained in the opinion, that "the contract was assigned by Rivenbark to the appellant, not without recourse, but with the guaranty of Rivenbark," etc. — a condition that would not naturally have existed if the contract had been executed to the Acceptance Corporation.)
It appears that on March 20, 1929, Rivenbark sold the car in question to Anderson for $1,599.00, Anderson paying $552.00 cash and executing the conditional sale contract to Rivenbark, as security for the balance $1,047.00, payable in 12 monthly installments of $88.00, beginning April 20, 1929 (the last installment being $79.00).
According to the course of the business relations subsisting between Rivenbark and the plaintiff corporation, Rivenbark on the same day drew a draft upon the plaintiff then doing business in the City of Columbia for $958.00, the amount of the debt less $89.00 carrying charges, attached the contract to it and forwarded the draft for collection. The contract was assigned to the plaintiff and guaranteed by Rivenbark. The draft was paid upon presentation by the plaintiff. *Page 54
Some time in July, 1929, after Anderson had made certain payments upon the contract, he was caught by the sheriff transporting about 40 gallons of liquor; he was arrested and the car was seized. On July 24th the plaintiff instituted the present proceeding.
Upon the trial of the case before his Honor Judge Townsend, there was no controversy as to the validity of the transaction between the plaintiff company and Rivenbark; nor as to the fact that there was default on the part of Anderson in the payment of the debt; nor as to the fact that the seizure by the sheriff breached the contract and entitled the plaintiff to claim possession of the mortgaged property. The contest was solely upon the issue whether or not the plaintiff had notice of the unlawful use to which Anderson had put the car. It was conceded that under the case ofWard v. Greer, 155 S.C. 426, 152 S.E., 678, the test of the right of a mortgagee to recover the property covered by his mortgage, which has been seized under Section 885 of the Criminal Code 1922, is the mortgagee's innocence in the use of the vehicle for the unlawful purpose of transporting liquor; that is to say, that the mortgagee who has notice of the unlawful use to which the car is being put is barred from asserting his claim.
There was no attempt to show that the acceptance corporation, personally, had the slightest notice, or even reasonable ground of suspicion, that the automobile, in the possession of Anderson, was being used "for the unlawful purpose of transporting alcoholic liquors." The defendants seek to bring the plaintiff under the rule announced in theWard v. Greer case, by showing that Rivenbark had notice of the fact referred to, and that he being an agent of the acceptance corporation, notice to him was notice to the corporation.
The existence of the relation of principal and agent between the corporation and Rivenbark could be established only by the inherent character of their business association. *Page 55 or by some conduct of Rivenbark, to the express or implied notice of the corporation, from which such relation could legitimately be inferred.
The business association between the plaintiff and Rivenbark does not indicate in the slightest degree that of principal and agent. The plaintiff was one of many corporations which have sprung up since the automobile was introduced; they are corporations which finance dealers in automobiles, by discounting paper which the dealers have taken upon credit sales, enabling them with the proceeds of such discount, to continue the endless chain of purchasing other cars and selling them upon the similar installment plan. The corporation had no interest whatever in the cars handled by Rivenbark prior to sales on credit by him; it was not a manufacturer or a dealer in cars; they were purchased by Rivenbark upon his own account without consultation with the corporation upon such terms as he chose to make with the manufacturers, and disposed of by him at his own pleasure; it was only after a car was sold upon credit that the relation between them was established, which was for the corporation to assist him in financing his business as distinct an engagement from the relation of principal and agent as could well be conceived.
If Rivenbark was the agent of the corporation, in what did the agency consist? A natural element in the relation is the power of the principal to direct the activities of the agent. The corporation had its business and Rivenbark had his, entirely distinct except when by convention they entered into a specific arrangement, as for instance the purchase of a credit obligation.
The evidence shows that, as Rivenbark had done in more than 100 other instances, in order to keep his business going, he drew a draft upon the plaintiff for the amount of the Anderson mortgage, less the discount, attached the contract to it, and forwarded it through the bank for collection. The plaintiff paid the draft and held in its possession the assigned *Page 56 obligation of Anderson. There was nothing else for Rivenbark to do; the payments were to be made by Anderson directly to the plaintiff in Columbia; the plaintiff had its own collection agents.
In 21 R.C.L. 817, it is said:
"An agency has been defined as a contract, either express or implied, by which one of the parties confides in the other, the management of some business to be transacted in his name, or on his account, by which that other assumes to do the business and to render an account of it." 2 C.J., 419.
The evidence will be sought in vain for anything that tends to show that the plaintiff confided to Rivenbark, who was acting independently upon his own account, any business to be transacted by him in its name or for its benefit or account; or that there was any transaction for which Rivenbark was expected to account to the plaintiff.
It is suggested that Rivenbark was active in looking after the credit sales that he had made. He had guaranteed the Anderson obligation to the plaintiff in the assignment and it was but natural that he would evince an interest in Anderson's complying with the guaranteed contract; not as the agent of the plaintiff but in his own interest. In some instances payments, for the convenience of all parties, were made to Rivenbark who forwarded them to the plaintiff in Columbia, more as the agent of those who made payments than of the plaintiff. If Rivenbark was an agent of the plaintiff for any purpose, it is strange that the evidence contains no suggestion of a settlement between them as principal and agent.
Even if Rivenbark had been the agent of the plaintiff in the collection of the mortgages assigned by him, of which there is not a particle of evidence, the knowledge which he may have acquired as agent for that purpose that Anderson was a bootlegger could have had nothing to do with his agency and was not therefore imputable to the plaintiff. *Page 57
There was evidence tending to show that after Rivenbark had sold the car to Anderson and had transferred the mortgage to the corporation, the police of Conway notified him that Anderson was a bootlegger and was using the car to transport liquor in it. How that could bind the corporation it is impossible for me to conceive. Under the Ward v.Greer case even the notice that Anderson was a bootlegger would not convey notice of the unlawful use of the car.
The main circumstance relied upon to show that Rivenbark was the agent of the plaintiff is the fact that after the seizure of the car by the sheriff, Rivenbark instituted an action of claim and delivery for the car, styling himself as agent of the plaintiff. There is nothing to show that he was authorized to institute such an action by the plaintiff; on the contrary, it appears that on the very day, or the next, that the action was instituted, the plaintiff sent its regular collection agent down to see about the seizure, who promptly disavowed the action, had it abandoned, and instituted the present one.
The salutary rule that the declarations of an agent cannot be offered in proof of the agency has been relaxed by allowing them in connection with other evidence of agency. Considering the abortive proceeding as such a declaration by Rivenbark, it stands alone, and was therefore inadmissible.
If there is a single circumstance in the case that indicates the agency of Rivenbark, I have not discovered it.
There being no evidence tending to show that the plaintiff knew or should have known of the unlawful use of the car by Anderson, it was entitled to the direction of a verdict.
MR. ACTING ASSOCIATE JUSTICE MENDEL L. SMITH concurs. *Page 58