(dissenting).
I dissent.
This case was decided at a pretrial conference and supposedly upon stipulated facts. The main opinion states that there was “a stipulation of facts, born of a colloquy between court and counsel, which amounted, not to a stipulation of facts, but a testimonial to confusion.” If this statement be true, then certainly the trial court erred in rendering a judgment for the plaintiffs because there was no evidence presented to him and nothing upon which he could have made such a ruling.
This case is before us on a complaint for the recovery of a motor home, and it seems to me the facts of the case which are not in dispute would require us to reverse the order and judgment of the trial court.
The defendant sent four motor homes to the Manchester Auto Sales in St. Louis, Missouri, pursuant to an order and gave instructions to the nonemployee drivers not to deliver them until payment was received. Through a ruse, two of the units-were caused to be parked at the address of the business office of Manchester/ They were not delivered to the sales lot, and possession was never given to Manchester. During the night these two units were spirited away, one to Texas, the other (the one involved in this action) to Illinois. Manchester never obtained possession of the unit in question. At best it only got custody, and that without any permission from anyone. The two units were parked for the night waiting for a check to be given on the morrow in payment for them, so that delivery could be made according to the purchase order.
The record does not show who took the motor home in question to Illinois, nor when it was taken. It does appear that the defendant here not later than August 7,. 1970, notified the authorities in Illinois and Missouri to be on the lookout for the two missing units. Two days later the plaintiffs saw the vehicle on the lot of Classic Cars, a local car dealer in Decatur, Illinois,, and on August 14 purchased it. By means not shown by the record Classic Cars got. possession of a “Manufacturer’s Statement of Origin to a Motor Vehicle,” serial number H31BGOS 117 315, which states that the unit was transferred to Manchester Auto Sales on July 14, 1970.
A purported assignment of the certificate of origin is partly filled out in favor *157of Classic Cars but not signed by anyone. A purported notary public says that James Bowes swore to the statement and subscribed to it on the 31st day of July, 1970. However, there is no indication in the record of who James Bowes is.
The respondents rely upon certain provisions of the Uniform Commercial Code, which has been adopted as the law in Utah. However, respondents fail to distinguish between mere custody and possession of a vehicle; and even if Manchester Auto Sales did have some interest in and to the vehicles parked overnight near its offices, it made no assignment to Classic Cars and, of course, Classic Cars had no title to give to the plaintiffs.
When the plaintiffs took possession of the vehicle in question, they were given a contract of sale to a unit with serial number H31BGOS 117 260; and when the plaintiffs got a certificate of title from Illinois to the vehicle, it was not for the one which they had purchased. [Emphasis added.]
It well may be that the vehicle was purposely misdescribed so that some form of title could be given without being detected, inasmuch as the authorities in Illinois had been alerted that the vehicle in question was stolen.
Upon learning where the vehicle in question was, the defendant went to Illinois, took possession of the vehicle, and returned it to Utah. The plaintiffs then filed this action in Utah to recover possession.
I think the judgment of the trial court should be reversed and custody and title to the vehicle declared to be in the defendant. I would award costs to the appellant.