Hier v. Wightman

Headnote

Replevin — when owner of automobile precluded by its conduct from denying authority of one in possession to sell the same.

Hier v. Wightman, 197 App. Div. 214 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 4, 1921, reversing a judgment in favor of plaintiffs entered upon a verdict and granting a new trial. Plaintiff Scully bought from defendant an automobile. Thereafter he assigned all of his right therein to a lumber company of which he was manager, but retained possession and continued to personally use the same. Thereafter, without, informing defendants of the assignment, of which they were ignorant, Scully traded in the automobile for another.. Ten days thereafter the lumber company transferred the automobile to Hier & Scully in part payment of an indebtedness. Scully has absconded. The partnership of Hier & Scully has been dissolved but continues for the purpose of winding up its affairs. This action in replevin was brought to recover the automobile transferred to the partnership on the theory that Hier had not

consented to his partner’s act and, therefore, the same was in fraud of and not binding on the partnership. The question was whether the lumber company had clothed Scully with apparent authority to deal with the car as his own, while leaving it in his possession after he assigned his interest to it.